Queen Mary Journal of Intellectual Property

Recent developments in competition law and intellectual property relating to reverse payment agreements: a comparative perspective

Nansulhun Choi * * and Yo Sop Choi * *

Keywords: reverse payment, competition law, IP, antitrust, Republic of Korea, comparative law, pharmaceutical industry

Abstract

The application of competition law to the pharmaceutical sector is complicated, and it is a difficult task for courts and competition agencies to determine whether a certain business practice in the industry results in a violation of competition law. In particular, the topic of reverse payment agreements is challenging in most competition jurisdictions, as it is deeply related to intellectual property (IP) law and policy. IP and competition policymakers often try to establish criteria for assessing this practice, and there has been recent noteworthy case law from courts in various jurisdictions. Courts in the United States and the Republic of Korea have recently issued their first judgments on reverse payment agreements. Although there is no significant court judgment in the European Union, the Commission has also made its first decision on a reverse payment agreement. This article therefore aims to discuss recent developments in competition law and policy on reverse payments in diverse jurisdictions through a comparative study.

Author Notes

E-mail: nanchoi@yonsei.ac.kr.

E-mail: yosopchoi@hufs.ac.kr.

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