Orwell on Competition

There’s nothing like getting back to basics. Having been asked to kick off a “Pharmaceutical Law Academy” summer school held at my old university, the organisers kindly allowed me to stay on and listen to talks on clinical trials, marketing authorisations, pharmaceutical trademarks, pharmaceutical advertising and pharmacovigilance. All of which was very interesting but the show-stealer was the last item on competition law and the pharma industry.

I’ve long been aware that the competition watchdogs in Brussels have had some curious obsession with what they regard as the unhealthy state of “big pharma” but I had not heard the lurid details from, as it were, the victims’ point of view. The presentations by Peter Rowland of Herbert Smith Freehills and Fleur Herrenschmidt of Novartis International AG were eye-opening and gave a slightly different picture to that of the EC Competition website.

Apparently the clever pharma-watchers in the European Commission do not see the ownership of a patent for a medicine as a right to be respected but as a target which, if attacked, qualifies the attacker as a would-be entrant to the market whose entry is being deliberately blocked by the patent – a slightly unconventional view of IP rights which could have been written by George Orwell.

It seems that behind this double-think (or is it half-think?) view of IP rights and wrongs lies the belief that the pharma landscape is divided neatly between research-based patent-owning monoliths who are the devils resolved to keep the price of drugs up and crusading generics companies who are the angels struggling to knock out patents and lower prices for the good of Europe’s sick and injured. As if we didn’t all know that these days the generics companies have some very substantial patent portfolios of their own and that many research-based pharma groups have their own generics subsidiaries. Where do the clever chaps in Brussels acquire their tinted spectacles?