In March 2021, the European Commission opened a formal investigation into alleged anti-competitive – ‘pay-for-delay’ – conduct, by the Israeli generics giant Teva Pharmaceutical Industries (Teva).
It is suspected that Teva took action to delay the market entry of generic drugs that competed with their multiple sclerosis drug, Copaxone.
The active ingredient of Teva’s Copaxone is glatiramer acetate. The patent for this ingredient expired in 2015 and generic drugs entered the market. In response to this competition, Teva introduced a three-times-per-week version of the drug with a different dosage. This was combined with a communication campaign over which there are concerns as it may have created a false perception of health risks associated with generic versions of the drugs. In addition, Teva engaged in practices to file, enforce and selectively withdraw divisional patents. The commission sees the combination of these actions as being purposeful in attempting to block or delay market entry of Copaxone competitors.
As such, the commission is investigating two new ‘theories of harm’. These relate to Teva’s patent filing practices –the filing and selective withdrawal of divisional patents – and communication measures impeded the market entry of generic drugs.
This case follows a host of other pay-for-delay cases investigated by the commission in recent years. An early example was against Lundbeck in 2013, for which the European Court of Justice has recently upheld the decision to fine the company, following appeals [1].
With the new theories of harm, this case does have differences to those previously investigated. However, it is hoped that the Teva investigation will shed light on relevant legal framework under EU law. It is clear that the EU continues to take antitrust enforcement seriously and will undertake investigations to prevent anti-competitive conduct.
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Reference
1. GaBI Online - Generics and Biosimilars Initiative. EU Court of Justice upholds Lundbeck fines over pay-for-delay [www.gabionline.net]. Mol, Belgium: Pro Pharma Communications International; [cited 2021 May 31]. Available from: www.gabionline.net/Policies-Legislation/EU-Court-of-Justice-upholds-Lundbeck-fines-over-pay-for-delay
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