Spanish Competition Authority Fines Merck Sharp & Dohme Over Alleged Abuse of Patent Rights
Today, the Spanish competition authority (Comisión nacional de los mercados y la competencia - CNMC) imposed a fine of EUR 38,934,000 on Merck Sharp & Dohme (MSD) because that firm allegedly abused its dominant position in the market for contraceptive vaginal rings (see, attached press release in Spanish and English). MSD is the owner of patent rights in relation to the vaginal ring known under the brand name Nuvaring®.
MSD supposedly misled the court by withholding factual and technical information before obtaining an ex parte injunction against Insud Pharma, a competing firm which had developed an alternative vaginal ring under the Ornibel® brand. The injunction, ostensibly designed to protect MSD’s patent rights, applied for 3 months at the end of 2017 and, according to CNMC, caused the production, distribution, and sale of the Ornibel® products to be disrupted in both Spain and abroad. Insud Pharma eventually managed to have the injunction lifted after it had been heard in court.
CNMC reached the conclusion that MSD had not legitimately enforced its patent rights but had rather hatched and implemented a plan to delay the market entry of generic rivals for its own vaginal ring. The case would seem to exemplify an incipient trend of competition authorities tackling perceived competitive deficiencies caused by otherwise lawful and legitimate uses of the patent system. This was on display only a few weeks ago when the European Commission challenged Teva’s allegedly abusive patent filings and disparaging statements targeting generic competitors (see, Van Bael & Bellis Life Sciences News and Insights, of 11 October 2022).