COMCO: Opening of an Investigation against Novartis

The Competition Commission (COMCO) opened an investigation against the Swiss pharmaceutical company Novartis and conducted a dawn raid at its headquarters in Basel on 13 September 2022.

According to its press release, Novartis is suspected of having abusively asserted a patent in court and thus abusing a dominant market position (blocking patent). Specifically, the pharmaceutical company shall allegedly have tried to protect its own preparation for the treatment of skin diseases by initiating legal proceedings against competing products on the basis of an own patent. According to the COMCO, this could constitute an abuse of a dominant position pursuant to the Swiss Cartel Act.

In this context, the investigation by the COMCO is supposed to clarify whether Novartis has in fact been using blocking patents in an abusive manner. The presumption of innocence applies

With regard to the investigation, the COMCO is cooperating with the European Commission on the basis of the bilateral agreement between Switzerland and the European Union (EU) concerning cooperation on the application of their competition laws from 2014. In the EU, the unlawful use of patents or patent proceedings has already been dealt with in various cases, for example in the much-noticed decision in the matter AstraZeneca/Commission (judgment of the ECJ of 1 July 2010 in case T‑321/05, [2010] ECR II-2805 2010 II‑2805, para. 361 ff., AstraZeneca/Commission) or in the Boehringer case (case closed by the European Commission in Case COMP/39246 – AT.39246 Boehringer after settlement of the dispute between the parties). This is in contrast to Switzerland, where the present proceeding is, as far as can be seen, the first of its kind.

The COMCO press release on the opening of the investigation can be found here.