11 May 2015
I had the privilege last week of taking part in a conference on the subject of Litigation and Settlements in Patent Disputes hosted by the ERA (Academy of European Law) in Trier, Germany (pictured!). The conference covered a range of issues from patent litigation in the member states, the likely evolution under the UPC, and some competition law themed topics including a healthy debate between Lilia Luchianov of the Commission and Avantika Chowdhury of Oxera (a former contributor to this blog) on the treatment of IP rights in the pharma patent settlement cases.
My paper looked at the recent developments in competition law in the treatment of non-challenge clauses. This necessarily involved a tour around the latest Technology Transfer Block Exemption and Guidelines, as well as a look at the treatment of the clauses in the Commission's Motorola and Lundbeck decisions.
At risk of appearing a total competition law geek, this is an area I find fascinating - it engages a number of competing policies drawn from both competition law - e.g., the idea that the maintenance of invalid patent rights stifles innovation - and elsewhere. Other such policies include the favouring of out-of-court settlements of litigation, and the principle of freedom of contract. The balance between these policies has varied over time, and will no doubt continue to do so.
For anyone else with an interest in this slightly esoteric area, my slides can be found here. A longer paper looking in more detail at the various policies in play is also available here. Some of the other very stimulating contributions to the conference are due to be uploaded to the ERA website in due course.