India, South Africa, Brazil and China have urged all World Trade Organization (WTO) members to share their national experiences on how competition law and policy can be used to deter practices such as collusive pricing which prevent generics from entering markets and raise prices of medicines.

The four countries, in a paper circulated at an on-going TRIPS Council meeting in Geneva, said that abuse of IP rights can be checked through competition law and countries must learn from each other, according to an official aware of the discussions at the meeting.

The US, the EU and Switzerland raised concerns on the paper and cautioned against discouraging members from striving towards and upholding robust domestic IP regimes.

The debate, initiated by China, South Africa, India and Brazil, focused on how to enhance understanding of the various approaches in the use of competitive law and policy to prevent or deter practices such as collusive pricing or the use of abusive clauses in licensing agreements that unreasonably restrict access to new technology, prevent the entry of generic companies and may result in higher prices for medicines.

“The issue of abuse of IP rights remains relevant in the context of the application of national and regional competition law regimes,” the co-sponsors underlined.

Consumer protection

The South African representative pointed out that competition law is one of the least discussed flexibilities within the WTO TRIPS Agreement and stressed that the fundamental objective of the competition law was to protect the integrity of competitive markets against the abuse of conduct and to protect consumers.

The EU said that members needto be cautious to consider the use of competition policy as flexibility in TRIPS. It said that competition policy measures have to be consistent with the provisions of the TRIPS Agreement and cannot be used as tools in avoiding the obligations under the agreement.

Negative consequence

One potential negative consequence of an insufficiently nuanced discussion could be discouraging members from striving towards and upholding robust domestic IP regimes, harming incentives for critical future innovations that would greatly benefit the public, the US said.

The Swiss representative said that building on voluntary and inclusive efforts such as the Medicines Patent Pool is the way forward, instead of denouncing the intellectual property system.

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