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ISSUE 1 2014 MASCHIO & SOAMES IP LTD The Commission declared in 2013 (http://europa.eu/rapid/press-release_IP-12-834_en.htm) that reverse- payment settlement agreements between Lundbeck and generics were anti-competitive since the generics were paid to stay off market and destroy stock.
Johnson & Johnson entered agreement with Sandoz (generic) with the guise of co-promotion but, in 2013, the Commission considered that this was a market sharing agreement to keep prices high and that J&J was acting to keep a generic product off the market (http://europa.eu/rapid/press-release_IP-13-1233_en.htm). Engaging in this sort of agreement at the time of patent expiry therefore looks particularly risky for innovators.
In April 2013 the OFT criticized GSK for threatening generics with infringement and subsequently entering into settlement agreements so that generics would stay off market in exchange for an financial settlement.
Finally, it is suggested that when reviewing or crafting IP agreements, such as licenses, careful regard must be given to the new Technology Transfer Block Exemption which came into force in May 2014, since previously allowable clauses, such as ‘grant-back’ and ‘no challenge’ provisions, are not automatically risk free any more.
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