Merck Sharp & Dohme BV and MSD Overseas Manufacturing (“MSD”) hold a patent for Alendronate, the active component of the medicine Fosamax, and an additional protection certificate for medicines (referred to as “ABC”). Merck Generics Belgium bvba (“Merck”) and Generics UK (“Generics”) wanted to commercialise a generic medicine containing Alendronate: Merck-Alendronate. In the context of a previous litigation, the President of the Court of Appeal in Brussels decided, after a complaint by MSD, that Merck Generics must no longer pursue the commercialisation of Merck-Alendronate.

It is against this background that Merck Generics lodged a complaint against MSD and a request for interim measures with the Competition Prosecutors. The complaint was lodged on 22 June 2007 and was based on an alleged infringement of Article 3 of the Competition Act and Article 82 of the EC-treaty. The complainant asked the Competition Prosecutors (i) to prohibit MSD from obliging Merck Generics to follow the decision of the President of the Court of Appeal regarding Merck-Alendronate until a decision on the merits is taken, (ii) to prohibit MSD from lodging other procedures based on its “void” patent and ABC and (iii) to impose a non-compliance penalty on MSD. These interim measures should prevent MSD from further abusing its dominant position on the Belgian market. Such abuse includes obstruction of the entry of generic variants of Fosamax to the market and the instigation of undeserved legal proceedings. Merck Generics’ arguments were that MSD’s patent and ABC are void and that MSD impedes competition in an illegitimate way by relying on invalid intellectual property rights.

In its decision of 5 October 2007, the Competition Prosecutor analysed the conditions for admissibility for interim measures and found that the complainant had lodged an admissible complaint. Further analysis showed that MSD had a dominant position on the relevant market despite the fact that the Competition Prosecutor left the exact market definition open. Indeed, MSD held a market share of more than 50% on all of the markets proposed by the parties and the difference between MSD’s market share and those of its closest competitors was more than 40%. However, the Competition Prosecutor could not demonstrate an abuse of this dominant position and therefore could not impose interim measures. The complaint and request of Merck Generics were based solely on the invalidity of MSD’s patent and ABC. Given that the Competition Council has no competence to rule on the validity of patents and that no competent court had declared MSD’s patent and ABC de jure void, the Competition Prosecutor presumed that they were valid. MSD thus has the right to rely on its patent and to protect it against infringements by competitors by lodging procedures against them.