A competition law probe into abuse of dominant position by pharmaceutical patent holders: the Indian perspective

Innovation is the very foundation on which the pharmaceutical industry stands with originators playing a pivotal role in this regard. In order to recoup the significant investments made in the course of drug development, the originator pharmaceutical companies (the companies that manufacture novel, brand name drugs) heavily depend upon the exclusivity granted by intellectual property rights and by patents, in particular. As the expiry of such patents approaches, in anticipation of the loss of market power, these patentees indulge in various kinds of practices to artificially prolong their initial monopoly to delay or prevent the generic versions of their patented drugs from entering the market. These practices could take the form of strategic patenting (also known as secondary patenting or evergreening), double patenting and other strategies resulting in denial of market access for potential competitors, which may give rise to competition law violations under the law of the land. Thus, the pharmaceutical sector the world over is most likely to be prone to anti-competitive practices, the primary effect of which is that access to affordable medicines is adversely affected. This paper, a work based on purely doctrinal research, shall elucidate purported instances of abuse of dominant position by pharmaceutical patentees in the Indian scenario. This shall be accomplished by an extensive analysis of the Indian jurisprudence that so far exists on this subject as well as on the interface between patent law and competition law in the Indian pharmaceutical sector.