15 January 2015

Who is afraid of the European Commission? Parties to patent settlement agreements would seem to be …

The European Commission is responsible for enforcing the rules on competition law in the European Union. In 2009, the Commission published the results of its Sector Inquiry into possible competition problems in the pharmaceutical sector. One of the Commission's findings concerned the use of settlement agreements in patent disputes with an element of "pay-for-delay".

"Pay-for-delay" agreements are essentially agreements to settle patent disputes between an originator pharmaceutical company (the patentee) on the one hand and a manufacturer of an allegedly patent-infringing, generic version of the patented pharmaceutical on the other hand. These agreements are further characterised by incorporating "a transfer of value" from the patentee to the generic company in return for the generic delaying its entry onto the market. 

In the years since 2009, the Commission has been monitoring the use of patent settlement agreements in the pharmaceutical sector as the Commission believes that the use of the "pay-for-delay" agreements is liable to be anti-competitive. 

The Commission has also taken action against two originator pharmaceutical companies that it held were using "pay-for-delay" agreements in an effort to prevent or restrict competition in the market for sale of their respective pharmaceuticals: a fine of EUR 93.8 Million was imposed on Lundbeck (citalopram) in 2013, and fines totalling appr. EUR 427 Million were imposed on Servier and a number of generics (perindopril) in 2014. Lundbeck and Servier have appealed against these decisions from the Commission and those appeals are pending. Moreover, the legal situation under US law has become unclear following the United States Supreme Court's ruling in FTC v. Actavis, Inc. in 2013 in which the Supreme Court held that "pay-for-delay" agreements should be subject to review under the "rule of reason" as opposed to the more lenient standard of review considered to apply before that ruling.

Although the legal dust cannot therefore be said to have settled on the question of the lawfulness of "pay-for-delay" agreements in general, the results of the Commission's most recent survey of the use of patent set-tlement agreements (covering the calendar year 2013) show that the number of "pay-for-delay" agreements has dropped significantly. The survey shows a decrease from an average of 22 % of all patent settlements in the period 2000 – 2008 to 8 % in 2013. 

Interestingly, the decrease in the use of "pay-for-delay" agreements would not seem to have negatively affected, overall, the ability of parties to patent disputes to reach settlements. Thus, the survey shows 146 patent settlements within the EEA during 2013 as opposed to the much lower annual average of 24 during the period 2000 - 2008.

Horten will continue to monitor developments in this complex and high-risk area of patent and competition law.

New executive order regarding cannabis out for consultation

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Green Tech Challenge 2017

27 September 2017

Horten supports the Green Tech Challenge with a team of advisors and a financial contribution. The Green Tech Challenge supports a number of selected Nordic tech companies with a strong sustainable agenda to optimise their businesses.

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Horten now offers e-learning in competition law tailored to each company.

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European ip rights in Great Britain after Brexit

19 September 2017

Great Britain's exit from the EU will create uncertainty for both British and EU27 companies in relation to the extent and protection of intellectual property rights in Great Britain. It is therefore of great interest and importance to clarify the consequences of Great Britain’s exit and how to handle them.

Merger implemented prior to notification - approved by the Danish Competition and Consumer Authority five years later

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The edtech company Labster announces Series A investment

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The Maritime and Commercial High Court states: Hästens' trademark infringed

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Google - an overview of the summer’s EU case against the internet giant

27 July 2017

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Merger control: When to notify mergers and acquisition to national competition authorities

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Horten advances in new Chambers and Legal 500 rankings

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Conditional approval of Maersk Line's purchase of German container shipping company

12 April 2017

The European Commission has approved Maersk Line's takeover of the German container shipping company Hamburg Südamerikanische Dampfschifffahrts-Gesellschaft KG (HSDG).

The European Commission: Aid to construction of Kriegers Flak is legal

30 March 2017

The Commission has approved the Danish state aid to the offshore wind turbine project Kriegers Flak as the project will contribute to an increased use of renewable energy in Denmark.

Extensive commitment protects innovation in connection with approved DOW/DUPONT merger

30 March 2017

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The European Commission launches new whistleblower tool

20 March 2017

Now, individuals can easily, quickly and anonymously disclose information on cartels and anti-competitive behaviour directly to the Commission.

SAS is once again to pay major fine for participating in the Air Cargo cartel

20 March 2017

SAS and a number of other airlines have once again been fined by the European Commission for their participation in the Air Cargo cartel. In 2015, the European General Court annulled the Commission's decision due to a procedural error. The Commission has now remedied the error and changed its decision.

Comparative markets - supermarkets and hypermarkets

9 March 2017

The CJEU recently issued its ruling in case C-562/15 on comparative advertising comparing prizes between shops of different sizes and formats.

New action plan for the implementation of the regulation on data protection

30 January 2017

The Article 29 group has adopted a new action plan listing which subjects the group will prioritise in 2017 to ensure an effective implementation of the regulation on data protection.

Data protection officer – who, when, what?

12 January 2017

The so-called Article 29 group has adopted a set of guidelines covering data protection officers, which will provide more clarity with regard to the data protection officer's assignments, position and liability.

Global Leaders in Law appoints Horten as exclusive partner for Denmark

10 January 2017

Global Leaders in Law, the leading global general counsel forum based in London, and Horten has announced partnership. Appointed as a global bronze partner, Horten will sponsor the activities of Global Leaders in Law in 2017.

Competition law - Adoption of new rules on claims for damages

1 December 2016

The directive concerning damages to customers (and others) suffering a loss due to violation of the competition rules came into force in December 2014 (Directive 2014/104/EU). The directive is now being implemented into Danish law.

Greenland adopts personal data act

22 November 2016

From 1 December 2016, the Personal Data Act became effective in Greenland at the request of the Greenland Home Rule. The Act replaces the data protection legislation from 1978, which has applied in Greenland until now.

Horten on two committees at the Confederation of Danish Industry, DI

3 October 2016

DI has re-appointed Søren Hornbæk Svendsen as member of the Energy and Climate Policy Committee and Nina Henningsen as member of the Media Policy Committee.

Internet media under pressure because of new EU ruling

15 September 2016

The latest ruling on hyper links and copyright confirms previous case law and adds a new rule of presumption, which may threaten the existence of some Internet media.

Easier for customs to stop copied products

14 September 2016

According to new EU rules, the owner of a product must, in the event of a trademark dispute, prove that the product is not a copy.

Circle K wins over OK in legal action concerning a new logo - Horten assisted Circle K

25 August 2016

Horten has assisted Circle K in a legal action against OK. OK claimed that Circle K's new logo infringed the company's trademark rights to OK and was therefore contrary to the Trademark Act.

New rules on trade secrets in the pipeline

27 June 2016

At the end of 2013, the European Commission presented a draft directive on the legal protection of trade secrets. After more than two years' negotiations between the European Commission, the European Parliament and the Member States, political agreement was reached on a final draft shortly before Christmas. The revised directive was finally adopted by the Council on 26 May 2016.

Horten is promoted to the gold tier for 2016 in IAM Patent 1000

8 June 2016

Glowing reports from peers and patrons see Horten promoted to the gold tier for 2016. It is “a force to be reckoned with in high-stakes litigation”.

Eckes-Granini acquires Rynkeby Foods A/S

19 May 2016

German-based Eckes-Granini Group GmbH (‘Eckes-Granini’), the leading producer of branded fruit-based beverages in Europe, has on 18 May 2010 acquired Rynkeby Foods A/S.

New ratings from the international reference book Legal 500

4 May 2016

There are several good news for Horten in the new rankings, among these to new Tier 1-ratings in Media & entertainment and Telecoms.

Final adoption of the new personal data regulation

14 April 2016

The European Parliament has adopted the new personal data regulation together with the rest of the data protection reform.

International women lawyers discuss the future of the legal profession

6 April 2016

Horten participates when 150 lawyers from all over the world meet in Berlin on 7-8 April under the headline "Law in a changing world – how women can contribute to innovation of the legal profession".

Horten Corporate Day 2016 - Danish companies at the forefront

18 March 2016

At Horten's Corporate Day 2016 on 16 March, Danish and foreign executives and experts gave their views on the trends and opportunities of the Danish business sector. Horten will repeat the success next year with Horten Corporate Day 2017.

The Eastern High Court: Pressalit infringed Tivoli's trademark and breached the licence agreement

2 March 2016

In January 2016, the Eastern High Court ruled in the appeal proceedings between Tivoli A/S and Pressalit Group A/S.

The Eastern High Court: Label infringes design right

9 February 2016

Horten represented the manufacturer of a diaper pail, Sangenic, and the High Court ruled that the use of a picture of the design-protected pail constituted an infringement of the design right.

New online dispute portal and requirements for web shops

19 January 2016

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New survey: Horten among the best within trademarks

18 January 2016

The recognised international magazine World Trademark Review (WTR) elects Horten as one of the country's leading advisers within trademark law.