Within the tool-box developed by originator companies in order to prepare and respond to generic entry, a prominent position must be recognized to a category of patent strategies particularly controversial under antitrust scrutiny, i.e. patent settlement agreements, in particular in the form of reverse payment patent settlements (also called pay-for-delay settlements), due to the fact that they provide for the patentee to pay the alleged infringer, rather than the opposite, with the aim of delaying its market entry. It is a fact that reverse payment settlement agreements arise mainly in the pharmaceutical industry. The article firstly analyses US and EU regulatory frameworks in order to highlight similarities and differences between them. Then, it examines the relevant case law in both contexts with a view to conducting a comparative study. Finally, the article discusses the approaches to reverse payment patent settlements adopted by antitrust authorities and courts and their clashes with intellectual property law, and contains a final proposal for the assessment of these agreements.
Excessive pricing has generally been seen as a problem to be addressed through sector-specific regulation rather than through antitrust intervention. Literature on the issue is divided between scholars calling for an interventionist approach and those supporting a non-interventionist approach on the basis of conflicting rationales. However, recent cases have called attention to the imposition of excessive prices in the pharmaceutical sector. The Aspen and the Flynn cases, in particular, constitute emblematic examples of such practice in the field of off-patent drugs. The analysis of the investigations conducted by national competition authorities in these cases provides some important insights into the controversial issues of ascertaining when antitrust intervention can be considered justified and of determining which methodology may be properly adopted in order to assess whether a drug price is unfairly high.
The rise of new software platforms presents regulators and antitrust agencies all over the world with a challenge. Should regulations adapt to the new services of the digital economy? Should competition law change its paradigm in relation to the sharing economy? Despite the growing expansion of these services, in most countries there is still no regulatory framework addressing these problems. Uber is the most emblematic example of this phenomenon. Indeed, it is subject to a large number of ongoing lawsuits merging many issues, ranging from questions pertaining to labour law of problems connected with unfair competition laws. This article first analyses the particular business model adopted by Uber and the antitrust concerns that it could raise. In so doing, the article pays heed to the approach that antitrust authorities should take towards the complex rivalry between (regulates) incumbents and (unregulated) new entrants. The article then considers the legal nature of the services provided by Uber, i.e. whether should be considered as transport services or as services of the information society. Either way, the chosen characterisation will affect the law applied to all digital platforms. The analysis, which adopts a comparative approach, focuses on the European context where national courts are in great turnmoil and the CJEU will be issuing a preliminary ruling on the nature of Uber services.
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