Those of you following this case might be interested to read this post by Daniela Ampollini of Trevisan & Cuonzo. The Consiglio di Stato’s reasoning, to the extent that it is translated here, is weak at best, relying as it does on the fact that the IP right was “used artificially, for a goal which is incoherent with that for which such a right is granted: in this case, the exclusion of competitors from the market.”

The Italian competition authority had relied heavily on Pfizer’s “exclusionary intent”, but as Daniela says: “[b]y no means can it be accepted that enforcing patent rights is abusive when the aim is the exclusion of competitors…” The very point of having patent rights in this sector is that they are exclusionary.

The judgment highlights again the significant weight attributed to contemporaneous evidence of intent in competition cases in thepharma sector. Especially if an innovator might be considered to be in a dominant position, it must take care to avoid any language which might suggest an anti-competitive intent. The focus, both in strategy and language, should always be on protecting IP and other legitimate rights, rather than on exclusion per se.

Osman Zafar