The competition and IP intersect

Published On 13/02/2014 | By Peta Stevenson | Enforcement

In a move which will be closely watched by the pharmaceutical industry, the ACCC has commenced proceedings against Pfizer alleging breaches of the Australian Competition and Consumer Act in relation to its blockbuster product Lipitor (Atorvastatin).

According to the ACCC’s press release, which can be found here:  the ACCC alleges Pfizer misused its market power and engaged in exclusive dealing in the lead up to patent expiry.  The ACCC alleges that Pfizer offered discounts (and payment of accrued rebates for purchases of Lipitor) conditional on pharmacies taking 12 months of stock of Pfizer’s generic atorvastatin products.  This conduct is alleged to have been for the purpose of deterring or preventing competitors from supplying generic products into pharmacies after patent expiry.

The press release quotes Rod Sims as saying “This case …raises an important public interest issue regarding the conduct of a patent holder nearing the expiry of that patent and what constitutes permissible competitive conduct”.

The case may deal with the sometimes delicate balance between IP rights and anti-competitive conduct.  It’s early days as the first directions hearing is scheduled for 18 March, but we’ll watch its progress with interest.

By Kim O’Connell

Photo credit: epSos.de / Foter / CC BY

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About The Author

is a partner in the Sydney office of King & Wood Mallesons where she specialises in competition litigation with experience in a wide range of jurisdictions. Peta also advises clients on the application of the anti-competitive conduct, consumer protection and access provisions of the Competition & Consumer Act 2010 (Cth) and related state legislation. In 2001/02 she undertook her LLM at the University of Cambridge, during which time she developed a passionate if fleeting interest in rowing.

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