The ruling which held that the enforcement of a patent does not constitue per se an undue restraint of competition is now final
By Raquel Flanzbaum y Antonella Balbo
The ruling of Chamber 1 of the National Court of Appeals in Federal Civil and Commercial Matters dated June 14, 2022, which had confirmed a decision of the Secretary of Domestic Trade closing the file on a complaint for predatory practices brought by Tuteur S.A. (Tuteur) against Millennium Pharmaceuticals (Millennium) and Janssen Cilag Farmacéutica S.A. (Janssen) for predatory practices, has become final (sentence of June 14, 2022, , Case No. 7344/2020, “Tuteur S.A.C.I.F.I.A. on Appeal Against Ruling Issued by the National Commission for the Defense of Competition” ).
As we reported in our newsletter of October 2022 (Be News No. 18), the Court had ruled that the enforcement of a patent, carried out during its term of validity, could not, per se, constitute an undue restraint of competition. That judgment became final because the Court rejected the extraordinary appeal filed against it by the plaintiff, who later informed that it would withdraw the complaint appeal (recurso de queja) it had subsequently filed with the Supreme Court of Justice.
Briefly reviewing the circumstances of this case, in 2015 Tuteur had filed a complaint with the National Commission for the Defense of Competition (CNDC, after its acronym in Spanish) against Millennium and Janssen for predatory practices unrelated to price in an attempt to exclude Tuteur, creating fear in buyers of its product “BORATER”, a generic drug authorized by the National Administration of Medicines, Food and Medical Technology (ANMAT, after its acronym in Spanish). According to Tuteur, the contested conduct had consisted, on the one hand, of bringing legal action against it for alleged infringement of Argentine patent No. 254,608 (of which the defendants were respectively the owner and the exclusive licensee) and, on the other, of falsely disseminating among Tuteur’s current and potential customers that the complainant’s drug “BORATER” did not have a quality similar to the product “VELCADE” marketed by the defendants. In addition, Janssen, through its sales representatives, had allegedly circulated in the medical profession an article disparaging the generic “BORTENAT” of a third firm (Natco Pharma, of India), this brand being almost identical to Tuteur’s “BORATER”. This conduct infringed article 2, paragraph f), of the then current law No. 25,156 on the Defense of Competition, whose provisions today correspond to articles 1 and 3, paragraph d), of law No. 27,442 (“to prevent, hinder or obstruct third parties from entering or remaining in a market or to exclude them from it”), which repealed and replaced it.
On November 25, 2019, the Secretary of Domestic Trade, based on an opinion of the CNDC, ordered that this file be closed, which was equivalent to rejecting the complaint (article 40 of law No. 27,442).
Tuteur appealed this administrative decision before the Federal Court of Appeals, arguing that said decision had not adequately assessed the impact and importance of the lawsuit filed against the appellant for the alleged infringement of Argentine patent No. 254,608 nor considered that Millennium and Janssen had abused their rights.
On June 14, 2022, the Court of Appeals confirmed the decision of the Secretary of Trade, holding that “a legal action instituted by the owner of a patent to defend the rights arising from said patent during its term cannot be deemed, in the manner postulated here by the appellant, to cause persecutory legal effects or in restraint of competition” (this legal action filed by Millennium and Janssen against Tuteur for alleged infringement of the patent at stake had been declared abstract because in the meantime this patent had expired).
Tuteur filed an extraordinary appeal against that judgment, which was rejected, and as a result it filed a complaint appeal with the Supreme Court, which it later withdrew, which ultimately led to the judgment of June 14, 2022 becoming final.
For further information please contact rflanzbaum@ojambf.com and abalbo@ojambf.com
