U.S. Competition Policy Frequently Deployed to Remedy Anti-Competitive Practices Related to Pharmaceutical Patents
Essential Action Briefing Note for WHO IGWG
Guest Blogger, Essential Action
During the 2008 World Health Assembly, the World Health Organization's Intergovernmental Working Group on Public Health, Innovation and Intellectual Property (IGWG) 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, which is why the relevant text remains bracketed (reflecting a lack of consensus) in the most recent version of the IGWG Draft Global Strategy. 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.
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.
 See Elements 5.3 (c), 5.3(e) and 6.3(f) of World Health Organization (WHO), “The White Paper (Advance copy in English only) of the IGWG "Outcome Document at 14.00 hours, Saturday 3 May 2008, Draft global strategy on public health, innovation and intellectual property," available at, http://www.who.int/phi/documents/IGWG_Outcome_document03Maypm.pdf
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