Summertime reading - Servier decision (II) - Paper patents and dawn raids

• In the summer of 2020, I wrote about the Servier decision of the European Commission imposing a fine on patent proprietor Servier for certain agreements it concluded with generic companies. Servier appealed to the General Court. The GC judgement was issued in 2018. The further appeal to the Court of Justice of the patent proprietor Servier was (for the greater part) dismissed; the appeal of the European Commission was allowed. 
• I would like to cite one paragraph of the GC judgment (again).
• EU General Court, para. 243: “It must borne in mind that, in the absence of harmonisation at the European Union level of the patent law applicable in the present case, the extent of the patent protection conferred by a patent granted by a national patent office or by the EPO can only be determined in the light of non-European Union rules, that is to say, national law or the EPC (see ....). Consequently, where, in the context of an action for annulment brought against a Commission decision, the EU judicature is called upon to examine a settlement agreement in relation to a patent governed by rules other than those of EU law, it is not for it to define the scope of that patent or to rule on its validity.
  It should also be noted that, in the present case, in the contested decision, although the Commission referred, in recitals 113 to 123, to the applicants’ strategy of creating a ‘patent cluster’ and ‘paper patents’, [citing from internal documents of Servier; see the Commission Decision, p.31 ff. ] it did not, however, rule on the validity of the disputed patents at the time the agreements were concluded.”
• ECLI:EU:T:2018:922, para. 243, English translation, link below.
  
  
• An article about the case was published by Andreas Heinemann in 2019. Heinemann writes: “For our context, it is important to note that the fact-finding of the European Commission reveals the strong presence of blocking strategies. In fact, the Servier decision contains an impressive description of the reality of blocking patents. Some quotations from internal documents as reported by the European Commission shall illustrate this aspect: Between 2000 and 2005, Servier applied for and obtained a number of process and crystalline form patents, which Servier internally referred to as ‘*blocking patent’ or ‘*paper patent’. According to Servier’s own assessment, some of them involved ‘zero inventive activity'.” (citing the Commission decision, link below). 
• Note how the term 'paper patent', originating from internal documents of Servier (perhaps obtained with the 'unannounced inspections of the premises of Servier'), is cited not only in the Commission decision but also in the GC judgment. 
• The Judges of the Court of Justice will therefore also have seen these terms originating from an internal document "ID9972" of  Servier that was obtained during the inspection (also known as 'dawn raid', see here) of the premises of Servier (see recital 276 in the Commission Decision).
• Heinemann 2019 “In spite of these findings, the European Commission did not apply a separate competition law analysis to the acquisition of blocking patents or to the filing of a patent which – also according to the conviction of the applicant – does not fulfil the patent requirements. The findings of the European Commission rather constitute the overall context which helps to understand the originator's strategies with respect to generic companies [*]. The Commission does not consider the originator's strategy of filing blocking patents a violation of competition law. ... ”
• * - i.e. the use of the term 'paper patent' by the proprietor provided the context for the proprietor's strategies with respect to the agreements it made with generic companies. These agreements were considered to be violations of EU competition law (in particular Article 101(1) TFEU; as confirmed by the CJEU in the partial dismissal of the appeal of Servier). 

The key patent at issue was revoked by the Board in decision T1753/06 in 2009.

https://competitionlawblog.kluwercompetitionlaw.com/2018/12/18/servier-v-commission-case-t-69114-5-crucial-points-of-the-second-pay-for-delay-decision-of-the-eu-general-court/

Heinemann 2019

Heinemann A. (2019) Blocking Patents and the Process of Innovation. In: Mathis K., Tor A. (eds) New Developments in Competition Law and Economics. Economic Analysis of Law in European Legal Scholarship, vol 7. Springer, 
https://doi.org/10.1007/978-3-030-11611-8_8 

https://www.ius.uzh.ch/dam/jcr:66f8a3a6-8876-4cd4-bf68-e09022a75930/Heinemann_Blocking_Patents.pdf 


Heinemann 2018
Heinemann, Andreas, Abusive Filing of IP Rights (September 18, 2018). Available at SSRN: https://ssrn.com/abstract=3251209 or http://dx.doi.org/10.2139/ssrn.3251209


General Court Judgment

ECLI:EU:T:2018:922 (Servier) English translation , case no T‑691/14,
http://curia.europa.eu/juris/document/document.jsf?docid=208901&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=3924387

European Commission Decision

9.7.2014, Case AT.39612 (Servier)

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39612

Court of Justice Appeals 

https://curia.europa.eu/juris/liste.jsf?num=C-176/19&language=en (appeal by Commission)

https://curia.europa.eu/juris/liste.jsf?num=C-201/19   (appeal by Servier)