Protecting Profits Post-Patent Expiry: ACCC v Pfizer, Patents and Competition Law

Arlen Duke and Rhonda Smith

Australian Intellectual Property Review

Arlen Duke and Rhonda L Smith, ‘Protecting Profits Post-Patent Expiry: ACCC v Pfizer, Patents and Competition Law’ (2019) 30(1) Australian Intellectual Property Journal 26

Abstract
In the lead up to patent expiry, pharmaceutical companies often engage in strategies designed to delay the production of generic medicines. This article considers whether such conduct is likely to be caught by competition law prohibitions. The article focuses on the recent Federal Court decision in Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd. The court's analysis of the conduct engaged in by Pfizer Australia is interesting in its own right. Further, the judgement provides guidance as to whether or not a firm will be viewed as possessing market power in the period leading up to patent expiry. The judgment also indicates that a firm may escape liability on the basis that it acted to protect profits, not substantially lessen competition. The article concludes by identifying other strategies employed by pharmaceutical companies and, drawing on the Pfizer decision, considers the legality of such practices.