The Commerce Commission has formally warned Consolidated Alloys NZ for cartel-like behaviour after the Australian-owned manufacturer used a settlement over a patent dispute to try and restrict roofing products available in New Zealand.
In June 2013 the Auckland-based manufacturer negotiated a settlement with competitor Edging Systems (NZ) resolving a commercial dispute about whether Edging System’s EZ-Edge product breached the Consolidated Alloys’ registered patent over soft-edge flashing products used on homes with metal roofs, the competition watchdog said in a statement. As part of the settlement the New Plymouth-based roofing products maker paid a lump sum and royalties on annual sales of its EZ-Edge product, while also agreeing not to sell any other soft-edge flashing products covered by the patent until June 2030.
In October 2013, Consolidated Alloys approached Edging System over its new product, Vent Edge, which the Australian firm said breached the conditions of the settlement but didn’t take any further action.
The regulator began investigating in September 2014 after Edging Systems came to the commission seeking immunity for alleged cartel conduct affecting competition.
The commission said while the settlement’s clause may have been inserted to protect royalty payments, restricting sales was likely to “substantially” lessen competition. Edging Systems’ two products had brought competition and led to some price decreases the regulator said. Following the investigation, Consolidated Alloys formally advised it would not enforce the restrictive clause and had also not prevented the competitor from selling Vent Edge.
“Without a court ruling we can’t determine whether the patent validly applied to any of ESL’s flashing products,” chair Mark Berry said.
The commission said it considered a public warning appropriate and would take no further action.
Consolidated Alloys registered the patent in 1995 and it expired in August this year.