Last December 26, 2006, Procompetencia (the antitrust Venezuelan Authority) dictated the SPPLC/0076-06 Resolution, in which the Venezuelan pharmaceutical company Wyeth Laboratory was sanctioned to pay approximately an equivalent amount of USD 185,000 fine by the commission of restrictive exclusionary practices forbidden in the Law with the intention of impeding the entrance or presence of a competitor product in the national market.
The fact that promoted the complaint was a cease and desist letter sent by Wyeth, when it realized the eventual launch of the Dollder’s antidepressive product IDOXEN®1 (Venlafaxine Clorhidrate) for the supposed commission of restrictive practices against the free competence, among others.
In the letter, Wyeth informs the plaintiff about the existence of: a) a patent over a product that is based on the Venlafaxine Clorhidrate active principle; b) the conferred rights by the Law to the patent owners; c) their knowledge about the eventual commercialization of the IDOXEN® product; d) the damages that would be done to Wyeth by a occasional patent infringement;e) the possible actions that Wyeth could execute in the case of a patent infringement and; f) a request of 100 IDOXEN® product samples.
Dollder assures that IDOXEN® and EFEXOR XR® has different quaily- quantitative formulas, eventhough they are based on the same active principle (Venlafaxine) and being that Wyeth has a patent over a Venlafaxine based product, no patent infringement would be taking place.
Wyeth’s defense was based on the argument that the cease and desist letter is a very common practice in the Intellectual Property field in order to avoid unnecessary legal issues; that the letter had informative objectives and in no case, it should be considered as a conduct aimed to restrict the entrance of the antidepressive IDOXEN® into the Venezuelan market.
In this case, Procompetencia concluded that the relevant market was "antidepressives for deep depression and other anxiety disorders treatment in the national territory". After that, Procompentecia made a detailed examination of each practice denounced by Dollder.
Like it was before, the fact that promote the complaint was a cease and desist letter by Wyeth, which under the plaintiff judgment threatened it in a direct way, and tried to impede the entrance of the IDOXEN® product into the market.
After a detailed analysis of the mentioned missive, Procompetencia considered that Wyeth does not count on Industrial Property Rights derived from its patent in Venezuela over the Venlafaxine Clorhidrate active principle, in the case that the protection of the patent evolves a product manufactured with the active principle, but the patent do not claim the active principle itself.
It also considers that the use of the phrase "we want to warm you" might be considered intimidating or threatening, because according to the Spanish Language Dictionary, to warn means to notify in a threatening way, not being such threats in accordance to Dollder’s right of dedicating its commercial activities without any more limitations that those expressed in the Constitution and the Law.
Finally, and respect to the intentional element of an economic agent in performing a restrictive conduct from the competence point of view, Procompetencia pointed that due to the Wyeth position in an antidepressive commercialization based on the Venlafaxine Clorohidrate active principle, it is possible to infer that that company did not know that the threatening correspondence would affect the entrance of Dollder in the market; being Dollder the option more restrictive of the free competence.
It considered that the indications in the cease and desist letter, evidenced a maneuver aimed to obstruct the Dollder entrance in the antidepressive medicine market with the same active principle and the same action mechanism to be used in the treatment of the deep depression and other anxiety disorders and in the case of that this conduct would be concreted would generated restrictive effects in the free competence, giving continuity to the Wyeth monopoly position.
In Procompetencia judgement, the cease and desist letter mailed by Wyeth accomplished all the supposals contented in the Law, constituting a restrictive practice to the free competence and so it was declared.
Additionally to the restrictive practice aforementioned, Dollder also denounced the manipulation of the production, distribution, technologic development factors, as well as the supposed dominant position abuse in the national market, which were dismissed by Procompetencia.
Finally, against this resolution was presented an administrative appeal which decision is pending.
Footnotes
1. It already counted with all the sanitary legal requirements for its commercialization
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