The pharmaceutical sector is recently in the focus of the academic literature, as it becomes more and more an important topic on the European level. Especially the relationship between patent and competition law can lead to problems and is consistently discussed. In September 2008 the ECJ had to make a decision in a case between a pharmaceutical manufacturer and his distributors, in which both fields of law played an important role. Because of these recent developments the objective of this thesis is to analyse the current relation between patent and competition law by laying the emphasis on the phenomenon of parallel trade. This work will focus on the abovementioned Lelos Case and its implications for the principle of exhaustion.
It does not deal with patent or competition law in detail, but contains the most important aspects in order to explain the consequences of the ECJ’s decision. Furthermore, the aspect of costs for research and development cannot be described extensively, but will be mentioned with regard to Lelos. The reason for that is the predetermined length of the thesis and the specific question, which the author has developed as a result of the Lelos Case.
At first the relevant conditions on the pharmaceutical market will be briefly shown (2.) in order to explain why especially in this sector parallel trade is such an important issue. Then, the general tension between patent and competition law will be described, by depicting the most important characteristics and jurisprudence in both fields of law (3.). The next chapter deals with the Lelos Case (4.). The decision to illustrate AG Colomer’s opinion is the result of his different approach to the case in comparison to the point of view of the defendant (i.e. GlaxoSmithKline). After that, a result regarding the impact of the ECJ’s decision on parallel trade and the principle of exhaustion will be given (5.). In this chapter it will be shown how legal writers estimate the consequences and evolutions of the Lelos Case in practice.
This thesis shall show how the ECJ has influenced parallel trade in patented pharmaceuticals in the future and what this means for the so far in EC law highly protected principle of exhaustion.
Inhaltsverzeichnis (Table of Contents)
- Introduction
- Special characteristics of the pharmaceutical market
- Tension between Patent law and Competition law
- Patent law
- Purpose of a patent
- The principle of exhaustion and parallel trade
- Competition Law
- Art. 81 EC
- Art. 82 EC
- Intermediary result
- Patent law
- The Lelos case
- Facts of the case
- Opinion of AG Colomer
- The ECJ's decision
- Consequences of the Lelos case
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This thesis aims to analyze the current relationship between patent and competition law in the pharmaceutical sector, focusing on the phenomenon of parallel trade. It will examine the implications of the Lelos Case for the principle of exhaustion, without delving into detailed explanations of patent or competition law. Key themes include:- The dynamics of parallel trade in the pharmaceutical market
- The tension between patent protection and competition law
- The impact of the Lelos case on the principle of exhaustion
- The role of research and development costs in pharmaceutical pricing
- The significance of the ECJ's decision in shaping the future of parallel trade in pharmaceuticals
Zusammenfassung der Kapitel (Chapter Summaries)
- Introduction: The introduction presents the context and purpose of the thesis, highlighting the increasing importance of the pharmaceutical sector on the European level. It emphasizes the case of Lelos and its implications for the principle of exhaustion, stating the scope and limitations of the thesis.
- Special characteristics of the pharmaceutical market: This chapter discusses the unique characteristics of the pharmaceutical market, particularly highlighting the price disparities between member states and the impact of patent protection on pharmaceutical pricing. It explains the significance of parallel trade in this context.
- Tension between Patent law and Competition law: This chapter delves into the general tension between patent and competition law by examining the purpose of patents and the principle of exhaustion in relation to parallel trade. It also discusses the relevant provisions of EC competition law, specifically Art. 81 EC and Art. 82 EC.
- The Lelos case: This chapter explores the Lelos case, providing details about the case's facts, the opinion of Advocate General Colomer, and the final decision of the ECJ. It focuses on the contrasting perspectives of GlaxoSmithKline and the ECJ.
- Consequences of the Lelos case: This chapter examines the potential consequences of the Lelos case on parallel trade and the principle of exhaustion, analyzing the implications for the pharmaceutical market and its stakeholders.
Schlüsselwörter (Keywords)
This thesis centers around the complex interplay between patent and competition law in the pharmaceutical market. Key concepts include parallel trade, principle of exhaustion, the Lelos case, pharmaceutical pricing, research and development costs, Art. 81 EC, Art. 82 EC, and the role of the ECJ in shaping the future of the sector. These key concepts provide a framework for understanding the challenges and opportunities presented by the evolving dynamics of the pharmaceutical market.- Quote paper
- LL.M. Anja Balitzki (Author), 2009, The end of parallel trade with patented pharmaceuticals?, Munich, GRIN Verlag, https://www.grin.com/document/137580
