Bundeskartellamt clears acquisition of patent and trademark rights in the osteosynthesis sector

The Bundeskartellamt has cleared the acquisition by Synthes Inc., West Chester (USA) of patent and trademark rights held by the Stiftung Arbeitsgemeinschaft für Osteosynthese, AO-Stiftung (Association for the Study of Internal Fixation, AO Foundation), Davos. The Bundeskartellamt had expressed concerns about the planned cooperation agreement between the AO Foundation and Synthes. The parties concerned have therefore suspended the agreement for the time being.

Synthes Inc. manufactures and distributes products for the surgical treatment of bone damage. It is inter alia the market leader in the market for implants and instruments for trauma treatment. The relevant patents and trademark rights have so far been held by AO Foundation and licensed to Synthes. The acquisition by Synthes does not lead to a strengthening of its market position, also because Synthes already has joint control of the property rights due to special provisions laid down in the license agreement.

The cooperation agreement on the other hand would have strengthened the market position of Synthes Inc. in the markets concerned. The AO Foundation carries out a product certification system awarding a quality mark which is known and recognised by doctors. Synthes Inc. already uses this system almost exclusively. Furthermore the AO Foundation organises training courses on osteosynthesis methods and only uses certified products in practical exercises. The cooperation agreement would have permanently excluded the possibility of opening the Foundation’s services to third parties. Synthes and the AO Foundation now intend to find a form of cooperation which is admissible under cartel law. The AO Foundation sees itself as an independent, non-profit foundation for research & development as well as for medical training courses. It cooperates with numerous doctors worldwide.

The President of the Bundeskartellamt, Ulf Böge, stated: “The Bundeskartellamt will make sure that the resources and infrastructure of this network will also be available to competitors of Synthes.”