Intellectual Property Rights (IPRs), Competition Law and Excessive Pricing of Medicines

Abstract

This chapter wrestles with the interface between Intellectual Property Rights (IPRs), competition law and access to medicines. It emphasizes the important role that competition law may play, in addition to the internal IP flexibilities, in order to foster access and dissemination of medical products. Of course, competition law could also be considered as a flexibility within the TRIPS agreement. In our analysis, we consider competition law separately given its role in creating competitive markets within which IP products are commercialized. Relying on the recent case law in the EU, in Italy and in South Africa on the application of competition law in the pharmaceutical sector, with a focus on the prohibition of excessive pricing of pharmaceuticals, this paper argues that TRIPS flexibilities are an important regulatory tool to control prices and to foster access to medicines. However, in certain circumstances, IP flexibilities are operational only within a competitive market that is guaranteed by a functioning competition law.