491As the Commission rightly noted in recital 698 of the contested decision, that test is problematic from a competition law perspective in several respects. First, it leads to a presumption that a generic medicinal product infringes the originator undertaking’s patent and thus allows the generic medicinal product to be excluded on that basis, when the question whether it infringes any patents is an unresolved issue. Secondly, it is based on the premiss that any patent invoked in the context of a settlement agreement will be held valid if its validity is challenged, although there is no basis in law or in practice for that outcome (paragraph 122 above). The ‘scope of the patent’ test is therefore based on a subjective assessment, by the applicants, of the scope of their patents and of their validity, whereas a national court or competent authority may have taken a different view.
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