ipwars.com

Following on from the post earlier this week about the findings that AstraZeneca had misused its market power in the EU over Losec, the Full Federal Court in Australia (Moore, Jessup and Dodds-Streeton JJ) has largely upheld an appeal against the primary Judge’s decision to strike out a Statement of Claim.

Unlike the AstraZeneca case, this case does not involve allegations of misuse of market power relating to a patented product; it concerns allegations about a price-fixing cartel for rubber compounds.

One interesting aspect about the case is that the litigation in Australia derives from a European Commission finding that Bayer AG and others had engaged in a global price fixing cartel for the rubber compounds. The applicants in this case allege that that cartel had ramifications in Australia causing them damage.

Another interesting aspect is that the applicants are bringing a class action to recover damages for the impact of the alleged cartel in Australia. In the IP field, we have recently seen the class action mechanism deployed to challenge the validity of patenting genes. Incidentally, the applicants’ solicitors in that case are the same as the applicants’ solicitors in this action.

Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85

Share on Facebook

The Court of General Instance (formerly (?) the EU’s CFI) has upheld the European Commission’s ruling that AstraZeneca abused its dominant position in the market by practices designed to block or delay generic drugs competing with Losec from entering the market.

The abusive practices were:

1. submitting deliberately misleading statements to patent agents, national patent offices and national courts in order to acquire or preserve supplementary protections certificates for omeprazole to which AstraZeneca was not entitled or to which it was entitled for a shorter duration; and
2. requesting (and obtaining) the withdrawal of regulatory marketing authorisations for Losec capsules and replacing those marketing authorisations with marketing authorisations for Losec MUPS tablets.

The result of the second practice was to delay entry on to the market of competing generic products as they could not use the abridged marketing approval process.

The Court did reduce, however, the fine from Euros 60 million to Euros 52.5 million.

The case concerned patents for omeprazole, the patent protection for which has generated some controversy in Australia.

Like the EU, Australian law does provide for supplementary protection certificates and there is the potential for abridged marketing approval processes for generics (pdf – e.g). Art. 82 of the Treaty also has some resemblance to s 46 of the TPA and, while we might think that the EU has a fairly idiosyncratic approach to determining market power, the Hoffman-La Roche ruling relied on by the Court of General Instance has been referred to with approval by the High Court in Australia.

Case T?321/05 AstraZeneca AB v Commission

which has been conveniently summarised by Linklaters and Gibson Dunn.

Now, we might think this is an application of the peculiar EU approach to

Share on Facebook

is online here.

ECJ highlights are:

• Owners of registered trade marks for luxury goods will be encouraged by a ruling of the European Court of Justice in Copad SA v Christian Dior Couture SA.
• The European Court of Justice has confirmed that domestic legislation which seeks to prohibit businesses from offering goods and services tied to the offer of other goods and services is in breach of EU consumer protection rules.

Share on Facebook

Ernie the Attorney posts an interesting review of “Free the Market” by Gary L. Reback, apparently the principal Government lawyer behind the Justice Department’s anti-trust law suit against Microsoft.

The key question posed by the book is this: do we need better government regulation of the tech sector?  Also: is the current state of technology development such that we need to re-examine how we use antitrust law to regulate it?  These are important questions, and Reback does a great job of laying the groundwork for understanding these questions.  

Fishpond’s price is AUD$36.69, which is not bad. If you do a search of the book on addall.com, you’ll see quite a number of bookshops are prepared to sell it for between US$6.60 and, say, US$20. That’s the new price, not just for used ones. The cheapest ones are mostly through Amazon. But, here’s the thing, none of them will sell them to Australia. You get a nice notice telling you that customs restrictions or somethings preclude the sale.

Customs restrictions?

Share on Facebook

On 15 January 2009, the European Commission commenced new proceedings against Microsoft alleging that Microsoft was abusing its dominant position in the market by tying Internet Explorer to the Windows operating system:

According to the Commission:

The evidence gathered during the investigation leads the Commission to believe that the tying of Internet Explorer with Windows, which makes Internet Explorer available on 90% of the world’s PCs, distorts competition on the merits between competing web browsers insofar as it provides Internet Explorer with an artificial distribution advantage which other web browsers are unable to match. The Commission is concerned that through the tying, Microsoft shields Internet Explorer from head to head competition with other browsers which is detrimental to the pace of product innovation and to the quality of products which consumers ultimately obtain. In addition, the Commission is concerned that the ubiquity of Internet Explorer creates artificial incentives for content providers and software developers to design websites or software primarily for Internet Explorer which ultimately risks undermining competition and innovation in the provision of services to consumers.

Apparently, Microsoft has 8 weeks to reply.

Microsoft’s initial press release notes that the Statement of Objections served by the Commission specifically states that the US settlement with the DOJ in 2002 (Wikipedia here) does not make the inclusion of Internet Explorer in Windows lawful under EU law.  Other than that it is fairly bland, as you would expect, stating that “We are committed to conducting our business in full compliance with European law.”

Read the Commission’s Press Release. Read Microsoft’s here or here.

Share on Facebook

How to organise a cartel or what the damages might be (apart from the penalties/fines) when if you get found out: John Asker ‘A Study of the Internal Organisation of a Bidding Cartel’ (pdf).

Warning: lots of economist-ese and formulas.

Lid-dip Prof. Joshua Gans.

Share on Facebook

IPKat reviews 2 new texts on the “interface” between aspects of IP and anti-trust or competition and an economics “reader”:

(1) Nuno Pires de Carvalho, TRIPS Regime of Antitrust and Undisclosed Information; and

(2) Irina Haracoglou, Competition Law And Patents: a Follow-on Innovation Perspective in the Biopharmaceutical Industry; and

(3) Robert P. Merges (ed), Economics Of Intellectual Property Law.

IPKat’s review here,

and the IP Dragon entices us with news of a new (1 August) anti-monopoly law in China. which, apparently, reserves well-known trade marks and traditional Chinese brands on grounds of national security.

Share on Facebook