Anti-monopoly Research On Drug Patent Reverse Payment Protocol

Drug patent reverse payment agreement is a settlement agreement that may lead to the effect of restricting competition in the field of medicine.Starting from the definition,this paper expounds its legal nature and background,analyzes the system and industrial basis of reverse payment agreement,and introduces the relevant cases in China’s judicial practice.Because the abuse of patent right will lead to serious problems of restricting competition,it is necessary to regulate it by anti-monopoly law.However,there are still many limitations.Combined with the existing extraterritorial law enforcement and judicial practice,we can summarize the experience of regulating this problem in China.China should set out from the value goal of encouraging innovation,promoting fair competition and improving the accessibility of drugs,combined with the system and implementation system of anti-monopoly law,and build a specific regulation path based on the basic framework of "prohibition +exemption" of China’s anti-monopoly law on horizontal monopoly agreements.At the level of prohibition,based on the characteristics that drug patents can be divided into basic patents and secondary Patents according to the intensity,the case analysis and EU analysis methods are applied to infer the violation of law respectively,so as to achieve the internal balance of competitive interests;At the level of exemption,the contracting parties can apply the public policy defense limited by the principle of proportionality for individual exemption.At the same time,we can improve its antitrust regulation from three aspects: establishing the communication mechanism between antitrust administrative law enforcement and patent litigation of drug patent reverse payment agreement,perfecting the exemption clause of antitrust review and the private execution system of antitrust law,in order to comprehensively and effectively deal with the problem.