November 7, 2013

The UK Court of Appeal Rules on the Importance of the "Multi-Headed Beast" in the Definition of Pharmaceutical Product Markets

Arnold & Porter Advisory

On 7 November 2013, the Court of Appeal in London ruled on the correct approach to market definition in relation to pharmaceutical products, in the context of a dispute between a pharmaceutical manufacturer and a wholesale trader. The Court strenuously rejected the notion that a patented medicine should be regarded as being a market on its own merely because the pharmacist holding a prescription for that product had no choice as to whether to purchase that product or another. Since the market had to be defined more broadly, to include products that the physician might have selected as alternatives, the wholesaler failed to show that the supplier was dominant, and could not therefore claim that a refusal to supply it was an abuse of dominance. The Court agreed with Abbvie that the choice of drug is decided by "a multi-headed beast comprising the patient, the prescriber and the budget holder, who is the ultimate payer."

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