Ahead of the much-anticipated Court of Justice decision in Lundbeck (due to be handed down on 26 March 2021), we have been exploring the competition law issues associated with patent settlement agreements in our series of short podcasts, On The Pulse: Talks. (This series is based over at our sister site, On the Pulse – watch this space for future life sciences podcast series.) Together with our colleagues in Bristows’ patent litigation and commercial IP teams, we discuss the current status of the law, giving insights and practical tips on some of the most important aspects of patent settlement agreements.
Check out the episodes below to find out more about this evolving topic.
Episode 1: An introduction to patent settlement agreements and pay-for-delay
Sophie Lawrance introduces the competition law treatment of patent settlement agreements and so-called pay-for-delay agreements
Episode 2: What is a value transfer and why does it matter?
Pat Treacy and Olivia Henry consider the impact of the Court of Justice’s broad interpretation of what might constitute a value transfer in the context of patent settlement agreements.
Episode 3: Identifying the relevant market & how to tell if patentees and potential infringers are competitors
Sophie Lawrance and Katie Cambrook provide some key insights into the identification of the “relevant market” and the assessment of whether the parties to a patent settlement are competitors
Episode 4: Restrictions of competition ‘by object’ – what does this mean and why does it matter?
Edwin Bond introduces the concept of restrictions of competition ‘by object’ under Art 101 TFEU.
Episode 5: Does it matter if a patent settlement agreement includes a no-challenge clause?
Pat Treacy considers the competition law issues associated with patent settlement agreements.
Episode 6: Does it make a difference if a settlement agreement also has a pro-competitive effects?
Sophie Lawrance and Olivia Henry discuss the pro-competitive effects that may be associated with patent settlement agreements, the extent to which they are relevant to the assessment of whether Article 101(1) has been infringed ‘by object’ and why this matters.
Episode 7: What unanswered questions remain?
Sophie Lawrance, Katie Cambrook and Helena Connors look ahead and discuss some of the outstanding points which may arise in the context of patent settlement agreements but which have not yet arisen in any of the cases to have come before the European courts.
Podcast 8: Practical implications of negotiating and drafting patents settlements
Pat Treacy and Erik Müürsepp discuss some practical considerations for those involved in the negotiation and drafting of patent settlement agreements.