Competition in the Pharmaceutical Sector — What’s new?

Law & Economics Workshop organized by Concurrences Review in partnership with Simmons & Simmons and MAPP.

[GoBack.] Emmanuel Combe

We are going to focus on a critical moment in the life of a drug, that of its genericization. But we must not forget the whole period before patent expiry, during which intellectual property protection allows the laboratory to make its R&D profitable, which we know is both costly and risky. In particular, the Competition Authority clearly explained in its opinion Medicines 2014 that the challenge of generics is not limited to reducing the deficits in the social accounts, but also aims to free up new resources to finance innovative medicines. During this patent phase, the antitrust authorities are rather on the backburner, their main role being merger control.

As for the critical moment of patent expiry, it calls for a certain vigilance on the part of the antitrust authorities. Indeed, laboratories can implement a wide variety of strategies aimed at limiting the penetration of generic drugs (patent extension, evergreening, own generic, range differentiation, etc.). While it is legitimate in principle to defend originator medicines, companies can only do so by using means that are based on competition on the merits. We will look successively at two practices that pose a problem with regard to competition rules and have led to important decisions, at French and European level: first, denigration, then entry deferral agreements.

Photos © Léo-Paul Ridet.

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