Italian Competition Authority fines Pfizer for abuse of dominance relating to visual glaucoma drugs

On 11 January 2012 the Italian Competition Authority (“ICA”) issued a decision fining Pfizer Euro 10.6 million for abusing its dominant position in the market for products for that treat visual glaucoma under Article 102 of the Treaty for the Functioning of the EU  (see Newsletter 3/2011 p. 7 and  Newsletter 6/2010 p. 8 for background information).  Last October 2011, the ICA stated that it had rejected Pfizer’s proposed commitments, because they were considered manifestly incapable of removing the anticompetitive effects of Pfizer’s conduct.

In particular, the investigation confirmed that Pfizer’s conduct to prolong patent protection for its active ingredient latanaprost in order to obstruct or delay the introduction of generic drugs competing with Xalatan, Pfizer’s branded product for the treatment of visual glaucoma, constituted an abuse of its dominant position by blocking or delaying market access to generics. The investigation was prompted by a complaint lodged by Ratiopharm, a generics producer.

In essence, Pfizer abused the administrative procedure by obtaining an extension to patent protection in Italy until July 2011, and again until January 2012, in order to align the duration of the patent protection for its product Xalatan with the rest of Europe. Pfizer did so by obtaining a divisional patent (a type of patent application containing matter from a previously filed application, known as the parent application) as well as a Complementary Patent Certificate, but never launched a new product as a result.  The European Patent Office in Munich declared the divisional patent invalid.  Thus, the unduly obtained extension of patent protection in Italy impaired investments made by generics companies in light of the possibility to enter the Italian market. Pfizer further increased legal uncertainty by undertaking civil and administrative actions based on counterfeit claims.  The ICA found internal documents showing that Pfizer was fully aware that its strategy to foreclose competitors could raise competition issues. [Gabriele Accardo]