In the United States, strict rules govern the proceedings before the patent office, imposing a rigorous duty of candour upon the applicant for the disclosure of prior art information as a way of collaborating with the examination process. Moreover, failure to comply with such duties can have severe consequences, as it may constitute a case of inequitable conduct and the patent may thus become unenforceable. In Europe, and particularly at the EPO, the rules governing patent application proceedings appear to be substantively different in that respect, by imposing less stringent duties upon the applicant, conferring the examiner a more inquisitive role and keeping the issue aside from patent litigation.
Be that as it may, the patent applicants’ misconduct before the patent office can also have important anticompetitive effects, and thus concerns under competition law might arise. In the United States, indeed, this is repeatedly cited as one of the typical cases where antitrust intervention is encouraged. In this regard, the Walker Process doctrine –coined by the Supreme Court in 1965– specifically deals with this issue and states the circumstances under which antitrust rules might apply. Its boundaries and its situation inside the whole antitrust system, however, are still far from clear.
In the EU, the issue did not attract much attention in the past, to the extent that old competition law doctrines expressly avoided issues relating to the grant or existence of intellectual property rights as such. Nevertheless, recent developments –including the AstraZeneca decision and the Pharmaceutical Sector Inquiry– suggest that the scenario might change in the future and that the solutions could turn out relatively similar on both sides of the Atlantic. In any case, the question remains whether such approaches appropriately balance the different interests at stake and whether there are any alternative approaches worth considering.