CeBIL member Behrang Kianzad participated in the 1st edition of WIPO’s Researchers Europe Seminar (IPRE) – University of Copenhagen

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05 October 2018

CeBIL member Behrang Kianzad participated in the 1st edition of WIPO’s Researchers Europe Seminar (IPRE)

Behrang Kianzad, PhD-Fellow at CeBIL, participated and represented CeBIL and Faculty of Law, Copenhagen at the first edition of WTO / WIPO IP Researchers Europe Seminar (IPRE) in Geneva, Switzerland in late June 2018.

Presenting part of his research in regards to “excessive pharmaceutical prices”, his presentation at a chaired by Marco ALEMAN, Director, Patent Law Division, World Intellectual Property Organization (WIPO), targeted the question of TRIPS flexibilities from a competition law perspective. A perspective that mostly been overlooked in the debate on access to affordable medicines. Drawing on the connection between TRIPS article 40 (k) and the article 102 TFEU the presentation sought to shed new light on a deadlocked issue that have attracted considerable scholarly, legal and policy attention for decades.

Below you´ll find the abstract and also further info regarding the event: 

Following the enactment of the TRIPS agreement, the Doha Declaration on Public Health in 2001 and the subsequent August 30th Decision in 2003, compulsory licensing has been forwarded as one measure, albeit controversial, to strike a balance between IPR-protection on the one hand, and access to medicines on the other hand.

However, these efforts have not produced the desired effect, perhaps due to the fact that the legal basis chiefly have been sought in the Human Rights perspectives on Right to Health and Access to Essential Medicines, mostly targeting Least Developed Countries. Coupled with the numerous steps / obstacles needed to make use of Paragraph 6 system it has led to the fact that the system has been used only once, by Rwanda-Canada. Although much of the debate has been focused on the tension between strong Intellectual Property and patent protection on the one hand, and Human Rights and Right to Health discourse on the other hand, less attention has been focused on excessive prices of patented medicines as an anticompetitive practice. Despite the flexibilities in this regard entailed in the TRIPS agreement and national legislations alike.

This paper argues that Competition law and Antitrust offer a far more legally sound and viable option in regards to striking a balance, would the excessive prices of patented pharmaceutical products be treated as an anti-competitive practice in and out of themselves. Although there exists a gap between European perspectives on dominant market position and excessive prices visavi American dito, there is a global trend towards more competition law enforcement in regards to excessive prices. This is shown in the growing case law and competition authorities enforcement in Europe and the DG Comp inquiry into Aspen Pharma alleged excessive prices.

The paper concludes that treating excessive prices of patented medicines as an anti‐competitive practice would indeed be an effective policy tool in securing access to essential medicines, using the TRIPS Article 31(k) taken together with Article 8 and 40, or under Article 102 TFEU in the European context.”

More information on the event and programme can be found here