The Uncertainties Created by Relying on the Vague ‘Competition on the Merits’ Standard in the Pharmaceutical Sector: The Italian Pfizer/Pharmacia Case

Abstract

In recent months, several pharmaceutical companies have been found to abuse their dominant position by extending patent rights with the alleged aim to delay generic entry.

In the case reviewed in this note, the alleged abuse was based on the view that the parties conduct did not constitute ‘competition on the merits’ - a standard which, for the author, does not satisfy the basic requirements of the rule of law and legal certainty.

Reliance on such a standard makes it difficult for firms to assess the compatibility of their IP strategy with competition law.

This may have an adverse effet on R&D and may discourage them from seeking for their patents the protection to which they are legally entitled.