The ruling of Chamber 1 of the National Court of Appeals in Federal Civil and Commercial Matters dated June 14, 2022, which had confirmed a decision of the Secretary of Domestic Trade closing the file on a complaint for predatory practices brought by Tuteur S.A. (Tuteur) against Millennium Pharmaceuticals (Millennium) and Janssen Cilag Farmacéutica S.A. (Janssen) for predatory practices, has become final (sentence of June 14, 2022, , Case No. 7344/2020, “Tuteur S.A.C.I.F.I.A. on Appeal Against Ruling Issued by the National Commission for the Defense of Competition” ).
As we reported in our newsletter of October 2022 (Be News No. 18), the Court had ruled that the enforcement of a patent, carried out during its term of validity, could not, per se, constitute an undue restraint of competition. That judgment became final because the Court rejected the extraordinary appeal filed against it by the plaintiff, who later informed that it would withdraw the complaint appeal (recurso de queja) it had subsequently filed with the Supreme Court of Justice.
Briefly reviewing the circumstances of this case, in 2015 Tuteur had filed a complaint with the National Commission for the Defense of Competition (CNDC, after its acronym in Spanish) against Millennium and Janssen for predatory practices unrelated to price in an attempt to exclude Tuteur, creating fear in buyers of its product “BORATER”, a generic drug authorized by the National Administration of Medicines, Food and Medical Technology (ANMAT, after its acronym in Spanish). According to Tuteur, the contested conduct had consisted, on the one hand, of bringing legal action against it for alleged infringement of Argentine patent No. 254,608 (of which the defendants were respectively the owner and the exclusive licensee) and, on the other, of falsely disseminating among Tuteur’s current and potential customers that the complainant’s drug “BORATER” did not have a quality similar to the product “VELCADE” marketed by the defendants. In addition, Janssen, through its sales representatives, had allegedly circulated in the medical profession an article disparaging the generic “BORTENAT” of a...
