The Provincial Court of Barcelona (Spain) recently upheld a petition made by an innovative pharmaceutical company that a hindering act in the market carried out by a generics pharmaceutical company be considered as an act of unfair competition.

Although hindering acts in the market per se lack specific provision in the Spanish Unfair Competition Act, they can be included in the general article of the law which prohibits any behaviour objectively contrary to good faith.

The Court defines “commercial hindering acts” as those that, without objective justification, adversely affect a third party’s position in the market, or in any way interfere in the normal course of their business.

In this case, a generics company applied to the Spanish Drug Agency (“Agencia Española de Medicamentos y Productos Sanitarios”) for authorisation to market their generic drug, 11 months before the innovative pharmaceutical company’s patent protection rights expired. Marketing authorisation was granted, which automatically enforced specific measures by the Spanish National Health System to enable a dramatic decrease in the price of the drug. The innovative pharmaceutical company requested that the generic company apply for a temporary suspension of the marketing authorisation to avoid negative economic consequences, though it refused to do so.

The court ruled that the generics company’s refusal to apply for temporary and revocable suspension of the marketing authorisation of its drugs lacked reasonable justification and adversely interfered with the development of the activity of the innovative company in the market.

This ruling opens a new path to protect the rights of the innovative pharmaceutical industry, particularly where the usual ways to protect their patent rights are exhausted.