Strategic Patenting by Pharmaceutical Companies: Should Competition Law Intervene?

IIC - International Review of Intellectual Property and Competition Law, Forthcoming

26 Pages Posted: 28 Aug 2020

See all articles by Olga Gurgula

Olga Gurgula

Brunel University London - Brunel Law School; University of Oxford - Oxford Martin School

Date Written: August 25, 2020

Abstract

As the COVID-19 pandemic is affecting the lives of thousands of people worldwide, the problem of timely access to affordable medicines has intensified today. Based on past experience of accessing medicines for life-threatening diseases there is a justifiable fear that access to any vaccines and treatments that are eventually developed may be hindered by patents, leading to unaffordable prices. In particular, one of the reasons that typically leads to high prices is strategic patenting employed by pharmaceutical companies. While this practice is currently considered lawful, this article argues that strategic patenting requires a long-overdue intervention by competition authorities and aims to attract their attention to its harmful effects. It maintains that, along with a more immediate negative effect in the form of high drug prices, strategic patenting affects dynamic competition by stifling innovation of both originators and generic companies. The article outlines the current approach to strategic patenting and provides arguments for the intervention of competition law. This, in turn, will open the possibility for competition authorities to investigate this practice and prevent its harmful effect on drug prices and pharmaceutical innovation, for the benefit of consumer welfare.

Keywords: strategic patenting, evergreening, pharmaceutical patents, anticompetitive, generic competition, access to medicines, access to COVID-19 treatment

Suggested Citation

Gurgula, Olga, Strategic Patenting by Pharmaceutical Companies: Should Competition Law Intervene? (August 25, 2020). IIC - International Review of Intellectual Property and Competition Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3680771

Olga Gurgula (Contact Author)

Brunel University London - Brunel Law School ( email )

Kingston Lane
Elliott Jaques Building
Uxbridge, Middlesex UB8 3PH
United Kingdom

University of Oxford - Oxford Martin School ( email )

University of Oxford
34 Broad Street
Oxford, OX1 3BD
United Kingdom

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