On 4 September, the French antitrust authority issued its decision (available here) in the proceedings initiated against Nespresso, for allegedly exclusionary practices implemented by Nespresso against competitors producing capsules compatible with its coffee machines. The proceedings ended with the acceptance by the authority of a series of commitments by Nespresso, aimed at eliminating the exclusionary character of the practices being challenged.

As is widely known, Nespresso is involved in various proceedings all around the world against companies producing capsules compatible with its coffee machines: in Italy, for example, proceedings against Caffè Vergnano, which we’ve discussed here on this blog, garnered significant interest. In a nutshell, those proceedings arise from the fact that Nespresso, which holds a number of patents related to both the capsules and the coffee machines, opposes third parties selling compatible capsules. These third parties, for their part, assert the invalidity of the Nespresso patents as well as their right to market compatible capsules.

In this context, what affects the decision of the French antitrust authority is that it does not seem to take into account the intellectual property rights of Nespresso: while mentioning the existence of the patents, it does not explain why they do not entitle Nespresso to legitimately put in place the exclusionary practices being challenged.

In any case, in addition, even assuming that such patents do not justify the behaviour of Nespresso, there is still another aspect of the decision that appears contrary to the requirements of the protection of intellectual property rights: it in fact provides that Nespresso has to communicate to its competitors, four months in advance of a launch onto the market, details of future technical innovations on their products, so that competitors have had time to adjust their capsules. However, this does not take into account the fact that such innovations may still deserve patent protection and entitle Nespresso to legitimately exclude competitors.

We would expect that the French decision has repercussions in other other Countries; we’ll see if Italy will be one of them.