Dutch Competition Authority Accepts Roche Commitments Regarding Supply of Testing Materials for SARS-CoV-2 Test
Autoriteit Consument en Markt, the Dutch competition authority (“ACM”), published on 3 April 2020 a press release expressing satisfaction with commitments made by Roche Diagnostics (“Roche”) regarding the supply of testing materials for the SARS-CoV-2 test (see, attachments). Roche, which ACM says has a “key position” for testing equipment and materials in The Netherlands, had been accused of withholding such materials, including lysis buffer solution, a reagent used to break open cells. On 26 March 2020, the Dutch second Parliamentary Chamber even voted a resolution which observed a shortage of that solution, attributed blame for the alleged shortage to Roche, and called on the government to compel Roche to share the recipe, if necessary by relying on a compulsory patent licence.
Roche rejected the allegations and pointed out that it had not even claimed patent protection for the recipe. According to Roche, which pointed out that it developed the first SARS-CoV-2 test in record time, the issue had arisen because Roche could not guarantee the safety and reliability of test results if the reagents were produced in facilities not under its control.
For its part, ACM made it clear that Roche had exhibited a “constructive attitude” by sharing the recipe for lysis buffer solution and helping in expanding production. This is why ACM did not consider further action necessary. In passing, ACM pointed out that it had worked closely with the European Commission as many Member States are grappling with similar problems.