The Antitrust Investigation Of Reverse Payment Agreements In Drug Patents

The reverse payment agreement in drug patents refers to the agreement signed by the patent pharmaceutical companies to pay a huge amount of fees to generic drugs companies for the return of delaying generic drugs access to the market in order to solve the real or potential patent disputes.Encouraging reconciliation is the basic judicial policy in patent litigation.Reconciliation can not only achieve the purpose of settling disputes by peaceful means,but also solve the problem of tense judicial resources.Patent pharmaceutical companies and generic drug companies in the pharmaceutical patent litigation,to fully consider the economic,legal and other factors,after the game signed reverse payment agreement to end the lawsuit,this should also belong to the scope of judicial encouragement,but patent reverse payment agreement is differs from normal settlement,reverse payment agreement is usually suspected to limit or exclude competition by agreement delay of generics into the relevant market.There is controversy about the legitimacy of the reverse agreement of drug patent under the anti-monopoly law system,which further extends to the value choice of antitrust system and intellectual property system.How to know the legitimacy of the drug patent reverse payment agreement under the antitrust laws,the European Union basic on the valve that a patent pharmaceutical company transfers to a generic pharmaceutical company through the reverse payment agreement of patent,and classifies the agreements.What's more,the European Union will investigate the cases which are suspected to limit or exclude competition;the U.S.Federal Trade Commission has began monitored the reverse payment between the pharmaceutical companies and pharmaceutical companies since 2000.And the FTC suits the reverse payment behavior which was suspected to be monopoly.The circuit courts of the United States had used “the per se principle” and“exclusive patent test” method,“reasonable principle” and other standards to review the reverse payment behaviors,the Federal Supreme Court finally unified the understanding in the Actavis case,a clear declare that a reverse payment agreement should be juded by “the reasonable principle”.At present,Chinese drug market has begun to free pricing.The imitation capability of generic pharmaceutical companies and the innovation capability of patented pharmaceutical companies have been greatly improved,domestic pharmaceutical companies frequently contact with the international market and China has appeared the clue of reverse payment,which makes the pharmaceutical patent reverse payment agreement in China has been possible.In strengthening the protection of intellectual property rights,in judging whether the reverse payment violate the anti-monopoly law,it shall be done in the legal system of anti-monopolyexisting under the comprehensive consideration of the patent law and antitrust law and use "the reasonable principle".In practice,learning the experience of the United States and the European Union,considering the degree of competition and comprehensive consideration of patent pharmaceutical market whether there is justification for the reverse payment and the time a reverse payment agreement allows generics to entering the relevant market,weather it limits or excludes competition,drug patent reverse payment agreement shall be revoked,punishment.ed,we should maintain the order of competition of drug market and the public health.