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Strategically Deterring Generic Entry Ahead of Patent Expiry: A Competition Law Antidote? Assessing Australian Pharmaceutical Antitrust Enforcement after ACCC v Pfizer

Colette Downie
(2017) 45 Australian Business Law Review 90



The strategies employed by pharmaceutical patentees to deter generic entry ahead of patent expiry have been closely scrutinised by competition regulators in both the European Union (EU) and the United States (US). The decision in ACCC v Pfizer, marks the Australian Competition and Consumer Commission's first, albeit unsuccessful, attempt to test the competition law implications of a pharmaceutical patentee's tactics to minimise profit erosion before loss of exclusivity. This article critiques the ACCC v Pfizer decision, and discusses how the market structure of Australia's pharmaceutical and patent regimes provide potential incentives for anticompetitive conduct designed to deter generic entry. Drawing on antitrust enforcement trends in the EU and US, this article examines the likely competition law implications of "product hopping" and patent settlement agreements (PSAs) in Australia. In considering future trends in Australian pharmaceutical antitrust enforcement, this article concludes that whilst Australia's misuse of market power prohibitions may effectively curtail unilateral conduct such as product hopping, there is no clear competition law "antidote" to the anticompetitive concerns raised by PSAs, given the variability of such agreements.