With respect to the question of whether a patent comparison agreement results in a restriction of competition “with effect,” the Court of Justice decided that, without the agreement, it was appropriate to consider how the market would work. However, it is not necessary to determine the likelihood that a generic drug manufacturer was successful in the original patent litigation, or that a settlement agreement, which was less restrictive of competition, could have been reached. Bad press. Expensive and expensive collections of documents and data. Unpredictable results. The sometimes slow pace of justice. It is easy to understand why the parties often prefer an early settlement in order to fight against legal action and final judgment. But the regulation itself is not a risk-free business, especially when it comes to competitors. In these circumstances, competitors and their lawyers should take special steps to ensure that their regulations do not raise competition issues that could ultimately lead the parties to the agreement contrary to federal, regional and/or international rules on cartels and abuse of dominance and competition. While domestic and international competition laws do not necessarily mimic federal cartel laws in all respects, they generally take the same approach where that price-fixing, supply control, supply manipulation and market distribution (i.e. customers, products and geography) are illegal, whether or not there are pro-competitive justifications. It is significant that such illicit agreements can, in themselves, give rise to penalties and proactive controls for companies, as well as imprisonment and fines for the various actors.
As far as the EU is concerned, the ECJ test for a “by object” decision is, in many ways, similar to that conducted by the US Supreme Court in 2013 in FTC v. Actavis. In Actavis, the court stated that “there is cause for concern that [pay-for-delay] comparisons (…) The Committee on the Environment, Health and Environmental Policy, Health and Health Policy and Environmental Policy ( Like the ECJ, the Supreme Court held that the likelihood of a transactional payment with anti-competitive effects necessarily depended “on their size, their magnitude relative to the payer`s foreseeable future costs, its independence from other services for which it could constitute payment, and the absence of any other convincing justification.” In considering the impact of such an agreement on competition, the courts assess, among other things, the combined market shares held by competitors and the expected competitive advantages and the anti-competitive effects of the agreement.