According to the decision, COMCO found it particularly relevant that Novartis purchased the patent portfolio to secure its own freedom to operate in the market – a legitimate motive from a competition law perspective. Nor was it considered anti-competitive that Novartis requested other companies to obtain licenses, at reasonable terms, for their anti-psoriasis products that potentially infringed Novartis' patent portfolio, even though Novartis enforced these requests through patent infringement lawsuits.

The investigation determined that Novartis' conduct aligned with standard patent law practices and found no evidence of an unlawful restraint of competition – irrespective of whether Novartis could be considered dominant in the anti-psoriasis space.

Moreover, Novartis' multiple parallel actions across various jurisdictions against a competitor raised no concerns. Evidence showed that these actions were not part of a strategy to exclude said competitor from the market. Instead, Novartis' continuous negotiations throughout large parts of the period investigated by COMCO demonstrated Novartis' genuine intent to monetize its patent portfolio rather than restrict competition.

COMCO's decision shows that the Swiss competition authorities are ready to strike a balance between the rationale of intellectual property protection and competition law. COMCO seems mindful of preserving the exclusivity rights conferred upon intellectual property holders. This approach aligns with the Federal Supreme Court's recent HCI Solutions judgment, which held that contractual exclusivity provisions merely reflecting the exclusivity conveyed by a copyright is not subject to the Swiss Cartel Act.

The Schellenberg Wittmer team representing Novartis included David Mamane, Peter Picht, Tobias Magyar, Frank Bremer, Amalie Wijesundera, and Laura Macht.