›Does the Patent System need to be disciplined?‹
On July 17, 2009 BARDEHLE PAGENBERG held a Symposium on the “EC Pharma Sector Inquiry” and possible impacts on IP Law. Outstanding experts both from industry and academia gathered as speakers and panellists, including Josef Drexl (Max-Planck-Institute, Munich), Thomas Porstner (ProGenerika, Berlin), David Rosenberg (GlaxoSmithKline, London) and Hanns Ullrich (Munich). Members of the EPO and the GPTO, judges from the German Federal Patent Court and German civil courts as well as IP practitioners from industry and law firms attended and contributed to a most valuable and controversial discussion.
In 2008, the Directorate-General for Competition of the European Commission, concerned about the decreasing number of novel medicines and about the time generic pharmaceuticals take to reach the market after expiry of the patent, launched an inquiry in the pharmaceutical sector. In its preliminary report published in November 2008, DG Competition voiced concerns that the European patent system impedes innovation and unduly delays the market entry of generic products. The final report was only published on July 8, 2009.
The Symposium held a few days later offered a timely forum to discuss this report and DG Competition’s approach to intervene in patent matters. The presentations and discussions did not question the basic assumptions of delayed market entry of generic medicines and the tendency of decline of novel medicines. Rather, criticism focused on DG Competition’s suspicion that this was caused by patent applications and patent enforcement and DG Competition’s lack to examine the causal interplay. It was also criticized to call upon anti-trust law in order to control and restrict the application for and enforcement of IP rights.
However, the presentations and discussions revealed that not all practices involving patent application and enforcement can be considered as appropriate practices and that anti-trust law might correctly be applied for settlement agreements providing “reverse payments” from the owner of the original product to the defendant for keeping the generic product out of the market.
BARDEHLE PAGENBERG will publish a book documenting the “EC Pharma Sector Inquiry” Symposium, being the second Symposium after last year’s “Stem Cell Research”, in a series of expert discussions on topics of public interest.