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DG COMP’s 5th Patent Monitoring Report: Time for Guidance Please!

Ian Forrester, James Killick, Mark Powell, and Jérémie Jourdan, White & Case, Client Alert, December 2014

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DG Competition of the European Commission just published its 5th patent monitoring report. It covers patent settlements entered into in 2013. Each year, the Commission claims that the report shows a "steady increase" of patent settlements in general, which supposedly would prove that the Commission’s threat of vigorous enforcement against so-called reverse patent settlements does not prevent pharmaceutical companies from settling patent disputes. The Commission also claims a steady decrease of "problematic settlements", namely those including a value transfer and a limitation of the generic’s ability to enter the market immediately with its own product. We published a client alert last year warning that the Commission’s conclusions were unsound. The criticism equally applies to this year’s report, which is in substance the same as the previous one, with updated statistics. We further submit that if the annual monitoring report is unable to give concrete guidance to the industry, it is time for the monitoring exercise to be stopped.

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