Side-Deals as Part of Pharma Patent Settlements : a New Landscape after Servier and Paroxetine?

The main objective of this paper is to shed some clarity on the applicable criteria for the antitrust analysis of side-deals as part of pharmaceutical patent settlements in the European Union. First, this paper critically discusses and compares the criteria used by the EU Commission and the General Court of the European Union (the “General Court”) to analyse the side-deals that were part of the patent settlements in the Servier case, which is currently pending on appeal. Second, the main points of the decision of the Court of Justice of the European Union (“CJEU”) in the Generics UK et al. are briefly outlined, focusing on the CJEU’s analysis of the side-deals that were part of the patent settlements at issue. The core suggestion of this article is that the decision of Servier regarding the Krka settlement will need to be revisited by the CJEU upon appeal, to restore legal certainty regarding the analysis of side-deals as part of pharmaceutical patent settlements