U.S. Competition Policy and Pharmaceutical Patent Abuse

The World Health Organization’s Intergovernmental Working Group on Public Health, Innovation and Intellectual Property is considering various proposals for WHO to assist developing countries in adopting and implementing competition policies to prevent or remedy anti-competitive practices related to the use of medicinal patents.

Reportedly, some rich country delegations are objecting to these proposals. This is surprising, because rich countries themselves commonly make aggressive use of competition policy to remedy abuses related to medicinal patents.

This briefing note provides a short overview of U.S. practice in this area. Full text (.rtf format) is available here: UScompetitionpolicy.igwg.rtf

U.S. competition authorities often issue compulsory licenses in conjunction with merger approval decisions, as a means to ensure competition in particular markets is maintained post-merger. Competition authorities have repeatedly prosecuted cases to prohibit collusive arrangements between patent holders and generic firms that are designed to delay generic competition. Private parties have repeatedly filed successful lawsuits under competition law principles to win redress for excessive pricing and patent-related abuses. Additionally, the government and private parties have invoked a statute aimed at curtailing fraud against the government to remedy anti-competitive practices.

Click here for an .rtf version: UScompetitionpolicy.igwg.rtf. Click here for a .pdf version UScompetitionpolicy.igwg.pdf.