Anticompetitive Patent Strategies by Pharmaceutical Companies

Abstract

Pharmaceutical companies have been increasingly exploiting the patent system to delay or even block generic competition. Some of these practices, such as ‘pay-for-delay’ agreements, have attracted the attention of competition authorities. However, other practices remain outside of competition authorities’ investigative activities in most jurisdictions. Among them are strategic accumulation of patents which is aimed at the procurement of numerous secondary patents that create multi-layer protection around a successful medicine. This practice has the capacity not only to increase drug prices, making them unaffordable for patients, but also may affect dynamic competition by stifling innovation of both originators and generic companies. Therefore, the current approach that views strategic accumulation of patents as lawful should be reconsidered in favour of investigating this practice under the competition law rules.

Keywords: Pharmaceutical competition, medicines, high drug prices, patent strategies, strategic patenting, strategic accumulation of patents, anticompetitive patent strategies, pay-for-delay agreements, divisional patent applications, the European Commission, the Antimonopoly Committee of Ukraine