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On December 6th the European Court of Justice (EuGH) has decided on an anti-trust proceeding regarding the market conduct of pharmaceutical company AstraZeneca (EuGH, C-457/10 P, decision of 12/06/2012). The company has been accused of preventing competition from generics, and therefore hamper parallel trade, by misusing the patent system as well as the regulatory review. The court stated that data for initial approval was hold back or misleading as the company supplied false information to patent offices and before courts. Concurrently, it stated that the conducted withdrawal of approval with the assumed intention of foreclosing generic competitors from the market without exhibiting medical objections is illegal. Hereby arises a delay in market entry of generic competitors which is relevant with regards to EU Competition Law. With this decision a penalty of EUR 60m by the European Commission was confirmed. The appeal was rejected.

Comment: The decision shows that questions of improper utilization of patents are subject to close control procedures and require accuracy when filing applications for patents and supplementary protection certificates. Otherwise, companies could be exposed to alleged abuse accusations.