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ARTICLE · 04 AUGUST 2018

Power and purpose: Protecting a competitive position after ACCC v Pfizer

Corrs Chambers Westgarth
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This judgment does provide some clarity on the issue of anti-competitive purpose, for pharmaceutical patent owners.

AustraliaAntitrust/Competition Law
Rachelle Downie
Rachelle Downie
Ian Reynolds
Ian Reynolds
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SUMMARY

On 25 May 2018, in ACCC v Pfizer,1 the Full Court confirmed that a patent owner with substantial market power may not necessarily be acting with an anti-competitive purpose if it seeks to protect its market position when faced with significant competitive threats in the lead up to patent expiry. On 25 June 2018, the ACCC announced that it had sought special leave to the High Court.

Australia's competition law has changed since the matter was brought and decided by two Courts, and the case may yet be heard by the High Court. However, the judgment provides some clarity on the issue of anti-competitive purpose. This is a central issue in pharmaceutical markets, where originator pharmaceutical companies continue to search for new ways to protect assets in which they have made substantial investments as patent expiry approaches.

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