Competition Law and Patents
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Competition Law and Patents

A Follow-on Innovation Perspective in the Biopharmaceutical Industry

Irina Haracoglou

Using the example of research tools in biopharmaceutical research and innovation, this book examines the complexities of the relationship between two fundamental areas of law and policy – intellectual property rights and competition law. It addresses a question that is certain to become paramount in other industries also: how to strike the balance between initial and follow-on innovation so as to ensure that access to ‘essential’ research tools (or other fundamental elements to follow-on innovation) is not impeded. The book concludes by suggesting how competition law could be used to complement the patent balance.
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Chapter 7: The Duty to Deal as Applied to Address Technology Access Problems in the Biopharmaceutical Industry

Irina Haracoglou


Compulsory licensing is not an absence of patent protection but merely a lessening of that protection. While compulsory licensing may weaken the incentives to invest in pharmaceutical research the trend of rapid and significant increases in investment in pharmaceutical research demonstrates that the present incentives to invest are so strong that they would have to be weakened considerably before there would be any reduction in the amount of pharmaceutical research. 7.1 Conclusions on the patent system in the case of research tools 7.1.1 The Particularity of Research Tools: Pre-commercial Stage Patents The nature of biopharmaceutical research and of the industry in general is such as to potentially give rise to concerns related to refusals to deal or lack access in certain cases. The specific case of research tools was examined in this context. T.C. Bailey, Innovation and Access: The Role of Compulsory Licensing in the Development and Distribution of HIV/AIDS Drugs, 2001 U. Ill. J. L. Tech. & Pol’y 193, p. 207. The latter consists of the full range of resources that scientists use in laboratories, recognising that one institution’s research tool may be another’s end product. NIH Report on Research Tools (1998) op. cit.. They are used to find, refine or design and identify something else that is sold in the marketplace. R. Blackburn in DOJ/FTC Proceedings on the Pharmaceutical Industry: Business Perspectives on the Use and the Role of Patents in the Biotechnology Industry, 26 February 2002. Many research tools are expensive to develop and have significant competitive value...

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