Margaret Kyle currently holds the Chair in Markets for Technology and Intellectual Property at MINES ParisTech. She is a noted authority on competition, intellectual property (IP), and innovation, with extensive multinational experience with life sciences and healthcare topics. Professor Kyle has been retained as an expert witness in multiple matters and has significant testifying experience, including at trial. She has provided testimony on a range of issues, including damages related to alleged product misrepresentation, pricing of pharmaceutical products, and nascent competition. The global Women@Competition platform named Professor Kyle among forty notable women competition professionals in their forties. Global Competition Review recognized her in its inaugural list of the world’s most important antitrust academics. In her academic work, Professor Kyle has examined the impact of antitrust, trade, and IP policies on R&D investment, innovation, and competition. In particular, Professor Kyle has substantive experience with issues related to pricing of pharmaceutical products, R&D productivity, new product distribution, and competition between branded and generic pharmaceutical products. In addition, she has written about antitrust merger enforcement issues in pharmaceutical markets, with applications to other dynamic markets characterized by innovation. In the context of COVID-19, she has analyzed how incentives can promote the development of new medical technologies and advance the rapid manufacture of tests and treatments. Professor Kyle’s previous positions include visiting professor of strategy at Northwestern University’s Kellogg School of Management; visiting scholar at the Center for the Study of Income and Productivity at the U.S. Federal Reserve Bank of San Francisco; professor at the Toulouse School of Economics; assistant professor at the London Business School, Duke University, and Carnegie Mellon University; and visiting professor at the University of Hong Kong. Professor Kyle consults to policy entities in the United States, Europe, and the UK on competition, economics, and innovation topics. She is a member of DG Competition’s Economic Advisory Group on Competition Policy. At France’s Conseil National de Productivité, which advises the French Prime Minister and the Minister of Economic Affairs, she is one of eleven independent academic economists analyzing the country’s productivity and competitiveness, particularly issues linked to the Euro Zone. She coauthored a note on policies to encourage pharmaceutical innovation for France’s Conseil d’Analyse Économique. In the UK, Professor Kyle serves on the Research Committee for the Oﬃce of Health Economics. Professor Kyle has coauthored chapters in the Handbook of Health Economics, the Oxford Handbook of the Economics of the Biopharmaceutical Industry, and Elsevier’s Encyclopedia of Health Economics. Her academic papers have been published in leading economics, strategy, and health policy journals. She is associate editor of the International Journal of Industrial Organization. Professor Kyle has been invited to speak at numerous conferences on issues such as nascent competition, reverse payment patent settlements, and excessive pricing.
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In this article, we consider some recent high-profile cases in the EU and the US where intellectual property (IP) rights and competition policy intersect, and discuss the impact of IP rights on the competitive assessment. We begin with reverse payment agreements, and consider the Court of Justice of the European Union (CJEU) judgements in Paroxetine and Lundbeck. Next, we discuss the US Court of Appeals for the Ninth Circuit judgement in FTC v. Qualcomm and the court’s insights on how to assess the competitive effects of licensing practices. We then consider the European Commission’s (the “Commission’s”) recent Aspen investigation and excessive pricing assessments. Finally, we turn to merger control, and describe the role of IP rights in vertical mergers. We conclude by noting rising concerns about transactions that may have an adverse effect on future competition.
The pharmaceutical sector regularly attracts the attention of competition authorities, who note persistently high profits, waves of merger activity, and declining research productivity in the presence of concerns about affordable access to treatments. The reliance on intellectual property rights (IPRs) introduces some complications to the analysis of pharmaceutical markets, as the welfare losses associated with entry barriers and high prices must be balanced against the dynamic effects of innovation incentives. In addition, the manner in which the pharmaceutical industry is regulated in Europe – with a mix of pan-EU and national policies and institutions – can lead to challenges in reconciling the goal of a “single market” with national needs, and in using competition law to achieve particular aims.