Google gets EUR2.43 billion fine

The European Commission has fined Google EUR2.43 billion (approx. AU$3.6 billion) for misusing its market power over internet searches.

According to the Commission, Google has over 90% market share for internet searches in the EU.

The Commission found that Google had abused this dominant position in internet searching by promoting results for its own Google comparison shopping service over results for competing comparison shopping services.

At this stage, the Commission’s press release and Factsheet are available.

While this is no doubt the start of a long legal process, Ben Thompson at Stratechery has an interesting, succinct analysis of the application of competition rules to Internet players here which is well worth reading.

Calling The Pot Black

Vickery J has struck out parts of a statement of claim for misuse of confidential information and ordered that the plaintiff’s solicitors and barristers who have had access to the information be barred from continuing to act in the proceeding.

DC Payments is suing Next for misuse of confidential information. The two companies compete in supplying ATM machines to retail, convenience and hospitality venues and Next was set up by some disgruntled ex-employees from DC Payments.

Next’s General Manager, Bosma, emailed a spreadsheet of its customers to 2 other employees: Solomon and Whale. Like Bosma, Whale had been an emploee of DC Payments too. Somehow, Bosma’s email to Whale went to his old account at DC Payments. DC Payments’ General Counsel recognised the mistake and instructed her staff not to look at it, but to delete it. However, the email and the spreadsheet were included in DC Payments’ discovery and eventually information from the spreadsheet found its way into Annexures identifying misused confidential information in DC Payments’ Amended Statement of Claim and some particulars.

Next has successfully sued to have those parts of the pleading struck out for misuse of its confidential information.

DC Payments sought to argue that the information was not confidential as it could discover who Next’s customers were by going around to the shops and venues to see which ATMs were installed and by whom. That might seem questionable as use of the spreadsheet saved DC Payments all the time and trouble of going through such an exercise. Further, the judgment indicates that the information used from the spreadsheet was very much more detailed than just the identity of the customers. The Master Customer List constituted by the spreadsheet included some 26 categories of information in addition to the customer’s name, address and ACN/ABN. These included details such as the names and contact details of the customer contacts, the customer’s bank account details, the Next sales agent responsible for the customer, the number of transactions made a month through the ATM at the customer’s site, the rebates payable to the customer and the maximum withdrawls authorised for the ATM.

It would appear that DC Payments did not admit it had used the confidential information to prepare the Schedules and particulars in the amended pleadings. However, Vickery J found there must have been misuse. Essentially, the Schedules and particulars included information which corresponded to the information in the spreadsheet, including information about the Next sales representative for the customer which was not in the public domain, and DC Payments did not advance any evidence to explain how it had sourced the information.

Vickery J therefore ordered that the Schedules and particulars incorporating Next’s confidential information be struck out. This was ordered even though his Honour considered that DC Payments could have obtained the information in question through “well drafted interrogatories”. His Honour accepted that the relevant principle was that DC Payments should not gain any advantage from its breach of confidentiality. In addition, it was ordered to delete any electronic copies of the Master Customer List and destroy any documents which contained information derived from it.

Further, as noted above, Vickery J ordered that DC Payments’ solicitors and counsel who had access to the confidential information could no longer act for it in the proceeding:

Any lawyer or person within the organisation of any firm of lawyers engaged by DC Payments, or any counsel retained on behalf of DC Payments, who has seen or directly or indirectly made use of the Master Customer List, should be retrained from continuing to act or work for DC Payments in this litigation.

Presumably, armed with his Honour’s judgment, the first job for DC Payments’ new lawyers will be to draft the well-crafted interrogatories foreshadowed by his Honour. It will be interesting to see if such an application would be rejected by the potential exclusion through s 138 of the Evidence Act 2008 (Vic) as, perhaps, his Honour warned at [83].

If you have a comment or question about this post, please feel free to post it in the comments section below or send me an email.

DC Payments Pty Ltd v Next Payments Pty Ltd [2016] VSC 315

IP and antitrust in Australia

Wow! I think this is a first in Australia: the ACCC – Australia’s competition “watchdog” – is suing Pfizer for antitrust breaches over its (then expiring) patent for Lipitor.[1]

According to the ACCC’s press release:

At its peak, Lipitor was prescribed to over one million Australians with annual sales exceeding AU$700 million.

Pfizer had a patent over the active ingredient, atorvastatin, but it expired in May 2012.

Early in 2012 (before the patent expired), the ACCC alleges that Pfizer offered to supply Lipitor to pharmacies at “significant discounts and the payment of rebates previously accrued” so long as they agreed to buy from Pfizer a minimum volume of up to 12 months’ generic atorvastatin after the patent expired.

The ACCC alleges this constituted a misuse of market power contrary to s 46 and exclusive dealing contrary to s 47 of the Competition and Consumer Act because:

(1) the offers were made before the patent expired and so at a time when other generic suppliers could not make offers; and

(2) “Pfizer engaged in this conduct for the purpose of deterring or preventing competitors in the market for atorvastatin from engaging in competitive conduct, as well as for the purpose of substantially lessening competition”.

If the ACCC is right, it wants penalties, declarations and costs. Under the Act, the pecuniary penalties could be up to the greater of $10 million, 3 times the benefit gained from the contravention or 10% of annual turnover.

More generally, as the ACCC’s chairman flagged:

This case also raises an important public interest issue regarding the conduct of a patent holder nearing the expiry of that patent and what constitutes permissible competitive conduct.

Now, patentees’ efforts, while their patent is in force, to tie customers into taking the product after the patent has expired, were so controversial that, just over one hundred years ago, Parliaments introduced legislation to permit licensees to terminate patent licences once the patent expired.[2]

Beyond that, s 46 also prohibits any corporation from taking advantage of a substantial degree of power in a market for the purpose of:

(a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market;

(b) preventing the entry of a person into that or any other market; or

(c) deterring or preventing a person from engaging in competitive conduct in that or any other market.

So, to contravene s 46, the ACCC will have to establish two conditions:

(1) Pfizer had a substantial degree of power in a market; and

(2) it took advantage of that power for an anti-competitive purpose.

The first issue turns on what is the market: the market for Lipitor or some wider market such as a market for the treatment of high cholesterol? This question highlights the reference in the ACCC’s press release to the succes of Lipitor “at its peak”. I don’t know much about the market for treatment of high cholesterol but, by the time Pfizer did this allegedly dastardly deed, there were presumably some alternatives to prescribing Lipitor.[3]

In an earlier proceeding involving copyright,[4] the Full Court of the Federal Court held that a record company which had less than 20% of the market did not have a substantial degree of power in the market. So, unless the ACCC can tie the market narrowly to the market for Lipitor, it may well face considerable difficulties.[5]

Those difficulties may mean that the s 47 allegation has greater significance as, in that earlier case, the Full Federal Court still found the record companies contravened s 47 even though they did not have market power. Although their conduct could not have the effect of substantially lessening competition (because they did not have sufficient market power), their purpose was anti-competitive.

Plainly, Pfizer was trying to sign up the pharmacies to this deal so that they would not buy at least the minimum amount from these generic suppliers who were apparently waiting in the wings, but is that anti-competitive? Maybe it depends on how large the minimum requirement is in relation to the pharmacy’s expected needs for the period. But, it was only for 12 months!

Normally,[6] one would expect the pharmacies could readily calculate whether they were better off taking the deal or continuing to pay the “list” price for Lipitor and then taking advantage of spot prices in the market after the patent expired. If the alleged contravention, however, was that Pfizer refused to supply Lipitor at all while the patent was in force unless the pharmacies agreed to buy “generic” Lipitor after the patent’s expiry, that might have put the pharmacies in a very difficult position of being unable to fill prescriptions.

A further potential complication is that s 47 does not apply to conditions in a licence (or assignment) of a patent to the extent the conditions related to the patented invention or articles made by the use of the patented invention. No-one really knows what that means. Could a pharmacy that agrees to buy Lipitor from Pfizer be a licensee? Certainly, in keeping the drug for sale and selling it, the pharmacy would be exploiting the patent (while it was still in force), but has an implied licence to do those acts. Could agreement to buy “generic” Lipitor after the patent has expired relate to the invention?

At this stage, the parties have filed their respective pleadings,[7] discovery is taking place to be followed by affidavits and a return to Court for further directions in September.

The ACCC’s press release

Lid dip: Patentology


  1. Federal Court Proceeding No. NSD 146/2014, filed on 13 February 2014.  ?
  2. As this case demonstrated, however, it has limited effect.  ?
  3. And it may often be the case that different drugs have different side effects or have particular advantages over other treatments so it is not quite the same as comparing, say, Pink Lady apples with Fuji apples or ….  ?
  4. Universal Music Australia Pty Ltd v Australian Competition & Consumer Commission [2003] FCAFC 193  ?
  5. That said, the price of Lipitor in Australia, even off-patent, has managed to attract unfavourable headlines.  ?
  6. Maybe there is some complexity arising from the arcane operations of pricing under the Pharmaceutical Benefits Scheme?  ?
  7. If anyone cares to provide a copy, I’d love to read them :-).  ?