Patent misuse and ‘sham’ - Development of new principles under EU competition law

Sammanfattning: This thesis takes its stance in the AstraZeneca judgment from the General Court and the latest developments in EU competition law and compares these with the equivalent standards of US antitrust law. Focus is on similarities and divergences between the EU application of competition law and the more developed doctrines of Walker Process and Noerr-Pennington in the US. The analysis is made in respect to the pharmaceutical sector, but the principles derived are presumed to be generally applicable. The thesis also features an economic approach to the current situation in the pharmaceutical sector and provides some reasoning as to the effects of the current enforcement of EU competition law. The thesis concludes that the General Court in AstraZeneca diverge from both the Commission’s decision and the US Walker Process doctrine, even though the General Court also finds AstraZeneca’s conduct abusive. A smaller part of the thesis is devoted to the Noerr-Pennington doctrine and the EU case of ITT Promedia and concludes that the case law between EU and US in this regard seems similar, at least more similar than the Walker Process concept. It is also concluded that competition between generic and originator firms, and the success of the generic products on the market, is more linked to the national legal frameworks, and in what way the member states create incentives’ for generic substitution. These obstacles are estimated to be far larger than the effect dominant firms can have on the prolonging exclusivity or hindering competition in other ways. Lastly, it is concluded that competition law is not well suited to deal with issues of regulatory frameworks such as the patent law framework. It is therefore of great importance that the EU receives a unified patent system with an EU patent court to deal with issues as the ones in AstraZeneca.