Monthly Archives: November 2024

Can Corporate E-mail Accounts Be Used in Case of Litigation?

Legal news, ,

With an order of July 17, 2024, the Italian Data Protection Authority (“DPA”) has fined Selectra
S.p.A. Euro 80,000 for unlawful processing of personal data. The case originates from an
agent’s claim that Selectra (i) had maintained his email account active after the termination of
his collaboration with the company; (ii) had used a specific software (MailStore) to back up the
contents of his email account for three years; (iii) had used his data in a judicial proceeding, in
which he was accused, along with other individuals, of business secrets misappropriation and
further unlawful conduct.


The DPA reaffirmed various key principles, applicable to employees and self-employed
personnel:


– The DPA has offered some important guidelines concerning the balance between the right
to defense and the right to privacy. According to the DPA, it is admittable to access
personal data to protect one’s right in court, only if the process is already
pending before the court or there are realistic possibilities to start the claim.


– Corporate email accounts cannot be used as archives. It is a company’s duty to
introduce suitable document management systems capable of archiving documents and
employees/collaborators’ email accounts cannot be used for such purposes.


– Personnel must be provided with an information notice which clarifies what is
processed, on which basis and how. Selectra, instead, had backed up corporate email
accounts, with the possibility of retaining their contents for 3 years after termination of the
employment/collaboration contract, without offering any kind of information to its
employees and collaborators.


The DPA concludes that the right to privacy cannot be sacrificed in pursuit of abstract and
indeterminate protection purposes. Incidentally, the DPA emphasized again that it is
forbidden to use tools that carry out monitoring of employees’ activity in breach of
Article 4, L. 300/1970 (Italian Statute of Workers’ Rights), which admits the use of systems
for remote employee monitoring only for production, organizational, labour and safety needs
and after an agreement with trade unions. (Instead, Selectra, using the software MailStore,
was able to trace meticulously, and even after a long time, the activities carried out by
employees in breach of the Italian Statute of Workers’ Rights).

The European Commission Recently Fined Teva: but Why?

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With an order issued on October 31, 2024, the European Commission fined Teva Pharmaceutical Industries (“Teva”) EUR 462.6 million for abusing of dominant position in relation to its drug Copaxone.

This European Commission decision is meant to further set on fire the already lively debate on the limits of patent law and antitrust rules in Europe.

1. Allegations: Abuse of Dominant Position and Patent Strategy

The order fined Teva for abuse of a dominant position. Specifically, two conducts were alleged, namely:

  1. The first relates to the delaying of the market entry of competing generics of Copaxone – a drug containing the active ingredient glatiramer acetate produced by Teva and indicated for the treatment of multiple sclerosis – through the filing of several divisional patents and their subsequent waiver. This approach, referred to by the European Commission as ‘divisional games’, had, in the European Commission’s view, the effect of:
  2. artificially extending the term of patent protection; 
  3. restricting competition even beyond the natural expiry of the original patent.
  • The second claim against Teva concerned the dissemination of false information in breach of competition rules aimed at dissuading consumers and healthcare professionals from adopting such cheaper versions of the drug by:
  • denigrating generic Copaxone products; 
  • casting doubts on their safety and efficacy.

2. Legal Analysis of Breaches: Article 102 of the Treaty on the Functioning of the European Union(“TFEU”)

The Commission’s allegations are mainly based on Article 102 TFEU, which prohibits the abuse of a dominant position within the internal market. A dominant company must avoid practices that (i) restrict, (ii) distort or (iii) prevent competition.

The practice of filing “divisional patents”, carried out by Teva, has been considered as an “exclusionary abuse”, as it prevents the entry of new players in the market through manipulation of the patent system.

This approach, although in line with patent law and the procedures of the major patent offices, including the European Patent Office, has been criticized from the competition point of view. In principle, the divisional patent system should protect distinct innovations and not allow the fragmentation of protection for a single invention to artificially obstruct competition.

In addition, the use of a disinformation campaign constitutes an abusive conduct, as it aims at diminishing the quality of competitors’ products without objective reasons, thus damaging the market and final consumers.

3. The Role of Divisional Patents and the ‘Manipulation’ of the Patent System

A divisional patent is an option under European law that allows patent owners to derive “child” patents from a main patent, thereby protecting more specific aspects of an invention. 

This system derives from one of the fundamental principles of patent law, i.e. that a patent can protect one, and only one, invention. Consequently, during the examination of patent applications, it is sometimes necessary to proceed with the filing of divisional applications when the examiner finds that more than one invention was covered by the original application. 

However, in Teva’s case, the excessive use of this practice was found to be abusive, as it was found to be aimed solely at extending the duration of monopoly protection for Copaxone. This practice, in addition to raising ethical and legal questions, led to the consideration of the need to change the patent system to avoid abuses. In particular, it has been suggested that European regulations on divisional patents may be updated to prevent anti-competitive practices, for instance by introducing stricter criteria for divisional patent granting.

4. Implications of the Teva Case for Competition Law and the Pharmaceutical Sector

The fine imposed on Teva represents a turning point for competition law applied to the pharmaceutical sector, as it further and rather explicitly underlines the need for a balance between patent protection and access to medicines. 

The European Commission, with this measure, wanted to give a strong signal against the strategic use of patents to obstruct access to generic medicines, which represent an affordable and accessible solution for patients, and which may also have a very important impact on Member States’ budgets concerning their healthcare spending.

In a scenario of increasing attention to anti-competitive practices in the health sector, the Commission’s intervention could lead other national and supranational authorities to monitor more strictly pharmaceutical companies’ behaviour in similar situations. Moreover, it may be possible that this case will put pressure on a reform of patent rules in Europe, aimed at limiting opportunities for abuse by dominant companies.