Getting closer: patent settlements in the US and in the EU after the Servier case
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With the decision on the Servier case, the Eu Commission confirmed its strict approach, already adopted in the "Lundbeck" case, towards the "reverse-payment patent settlements". The choice of considering these agreements as restrictive of competition «by object» seems to clash with the jurisprudence of the Us Supreme Court, which recently opted for the application of the "rule of reason". A deeper analysis, however, shows that the two approaches are, in substance, very similar. The decision provides additional insights in relation to the robustness of a standard of proof based on the fact that a "reverse-payment patent settlement" provides for a non-justified «significant value transfer » from the originator to the generic company, regardless of both the validity of the underlying patent and the analysis of the effects of the settlement on competition. The decision also appears far-reaching, since it extends the application of art. 101 Tfue to the "reverse-payment patent settlements" that provide for non-monetary payments (sidedeals, etc.). At the same time, it appears unable to fully capture the functional relation between the "reverse-payment patent settlements" and the "product hopping" conducts put in place by the undertaking and its detrimental effect on generics' entry in the market.