The Research On The Monopoly Recognition Of Reverse Payment Agreement In China's Pharmaceutical Industry

China is a big country in the production and use of generic drugs.Generic drugs have a bearing on the safety of the people's medication,and it is also related to the healthy development of the entire pharmaceutical industry.However,the emergence of reverse payments has disrupted the healthy order of the pharmaceutical market.Through the reverse payment agreement,patent drug manufacturers can artificially delay the time when generic drugs enter the market,which can maintain drug prices at a higher level and makes patent drug manufacturers enjoy huge monopoly profits with generic drug manufacturers.Reverse payments will cause consumers to bear unreasonable drug costs and do great harm to market competition.Up to now,although there is no real case of reverse payment in China,and scholars have different opinions on whether there will be a reverse payment or not,according to the development of China's pharmaceutical market and the analysis ofrelevant systems in China,there is also a large probability that reverse payment will occur in our country.Therefore,in order to deal with the reverse payment agreement in time when it appears,how to determine the monopoly of a reverse payment agreement has become an urgent problem to be explored.Since reverse payment agreements generally occur in pharmaceutical patent litigation,the balance of interests between patent protection and monopoly regulation must be considered when selecting the analytical method.The antimonopoly execution authorities and courts in Europe and the United States have explored this problem for a long time.On the basis of absorbing the experience of Europe and the United States,and taking the balance between patent protection and monopoly regulation into account,this paper finally establishes the rule of reason principle as the basic principle of the monopoly recognition of reverse payment agreements.However,since the rule of reason is an analytical principle under American law,it is necessary to analyze whether the rule of reason principle can be compatible with the legislative framework of China's anti-monopoly law in the process of embedding it into China's anti-monopoly regulatory framework.According to this paper,the reverse payment agreement is a kind of horizontal monopoly agreements in Article 13 of China's anti-monopoly law,but it does not belong to the five explicit cases,so there is space for applying the rule of reason principle.And to conduct monopoly recognition under the rule of reason principlemainly from the following four aspects,the competition situation of the relevant market,the market position of the patent drug manufacturer,the effect of the reverse payment agreement on the market competition and the special situation that can be exempted.Finally,determine whether the reverse payment agreement needs to be regulated by the anti-monopoly law.