As Covid-19 Continues, CUTS’ World Competition Day Celebrations Raises Questions on whether strong IPR has helped Innovation or Not

Delhi: “We need to reflect more as to how much of innovation has the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights has actually promoted or not”, said Mr Pradeep S. Mehta, Secretary General, CUTS International at a global webinar on the issues of healthcare and competition policy.
The webinar was organised by CUTS International and CUTS Institute for Regulation & Competition to invite the global community to celebrate the World Competition Day (WCD) on 5th December by releasing a Toolkit for practitioners and people on “Competition and Access to Healthcare”. 
The toolkit provides guidance on using both ex-ante and ex-post competition policy as tools to enhance access to healthcare, the urgency of which has increased in the wake of Covid-19.
“In the context of Covid-19, today’s theme is particularly timely and topical. Indeed, it has never been more important to ensure adequate flexibilities in the intellectual property regime to allow medication and medical equipment to be more freely available without IPR restrictions”, said Mehta. Released today (available at https://bit.ly/3l68bs8), the publication prepared by CUTS International and CIRC aims to contribute to an enabling policy environment that promotes competition in the market, including removal of entry barriers and market distortions, and inducing ease of doing and running businesses. Indeed, to keep the market competitive, competition law enforcement alone may not be sufficient. 
The Toolkit provides guidance on using both ex-ante and ex-post competition policy as tools to enhance access to healthcare, the urgency of which has increased in the wake of Covid-19. 
It also captured case laws and recommendations across areas such as: (i) Regulation and Competition Policy; (ii) Pro-competition Patent Laws; (iii) Horizontal Agreements; (iv) Vertical Arrangements; (v) Abuse of Dominance; (vi) Pay for Delay; (vii) Mergers and Acquisitions in the Pharma Industry; (viii) Frivolous Litigation; and (ix) Covid-19 Responses.
These will help competition authorities around the world tackle some of these challenges, and a number of its recommendations and issues addressed were discussed with expert panellists today. 
On the panel, experts reviewed some of the complex and sophisticated anti-competitive practices seen in the healthcare and pharmaceutical sector. 
These involve inter alia excessive and unfair pricing of patented drugs; Pay for delay agreements between patent holder and generic producers to delay generic entry and keep prices of drugs artificially high; strategic mergers leading to monopolies or duopolies reducing competition, resulting in price increase and loss of innovation; Agreements such as exclusive supply or distribution, resale price maintenance, and “refusal to deal” etc. 
Rashid S. Kaukab, Executive Director, CUTS International, Geneva moderated the rich session while Dr. Arvind Mayaram, Chairman, CUTS Institute for Regulation & Competition introduced the Toolkit in an elaborate manner. 
Other speakers included Teresa Moreira, Head, Competition and Consumer Policies Branch, UNCTAD; Hardin Ratshisusu, Deputy Commissioner, South African Competition Commission; Carlos Correa, Executive Director, South Centre; Alexey Ivanov, Director, BRICS Competition Law and Policy Centre, HSE, Moscow; and Antony Taubman, Director, IP, Government Procurement and Competition Division, World Trade Organization.
Among other recommendations provided by the Toolkit are: (i) Compliance training programme for the stakeholders to prevent anticompetitive behaviour; (ii) In-house pharmacies and diagnostic services at hospitals should be for convenience and emergencies; (iii) Doctors should be encouraged to prescribe generic medicines; (iv) Strengthening of competition advocacy to address information asymmetry; (v) Regular competition assessment of healthcare sector; and (vi) Compulsory licensing should be resorted to in exceptional circumstances.
Finally, it was also recalled that, on 5th of December 1980, the United Nations adopted the UN Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices. To date, this “UN Set” remains the only multilaterally agreed instrument on Competition Policy, and paved the way for enormous progress on consumer welfare. Since then, a global movement led by CUTS International has been celebrating and calling for the adoption of a World Competition Day on 5th December. 
To date, over 24 countries have supported the call and celebrated this Day, some of which like Philippines having officially adopted it at national level.