药品行业产品跳转行为反垄断规制: 美国经验与中国构想

Antitrust Regulation on Product Hopping Behavior in the Pharmaceutical Industry: The U.S. Experience and China's Conception

  • 摘要: 药品行业产品跳转行为是原研药企为了延缓或者阻碍仿制药企进入市场的一种反竞争策略。该行为属于滥用知识产权的垄断行为,引起了域外多个国家的反垄断关切与规制。其中,美国是最早关注到产品跳转行为这一反竞争商业策略并予以规制的国家。经过多起产品跳转行为案件的审理,美国司法机关已经积累了丰富的司法实践经验,构建了一套完整的药品行业产品跳转行为反垄断分析框架。当前,我国正在进行新一轮的医药改革,一方面鼓励药品创新,另一方面保障药物可及。这就必然引发原研药企鼓励创新与仿制药企市场竞争的冲突,未来药品行业极有可能出现产品跳转行为。鉴于产品跳转行为所致的反竞争效果与反垄断法规制目标相契合,我国应当从反垄断法规制层面出发,构建适配于我国的药品行业产品跳转行为反垄断规制框架。

     

    Abstract: Product hopping behavior in drug industry is an anti-competitive strategy of original research drug companies to delay or hinder generic drug companies from entering the market. This behavior belongs to the monopoly behavior of abuse of intellectual property rights, which has caused anti-monopoly concerns and regulations in many countries outside the region. Among them, the United States is the first country to pay attention to the anti-competitive business strategy of product hopping and regulate it. After the trial of many cases of product hopping behavior, the US judicial authorities have accumulated rich judicial practice experience and built a complete anti-monopoly analysis framework of product jumping behavior in the drug industry. At present, China is in a new round of pharmaceutical reform, on the one hand to encourage drug innovation, on the other hand to ensure the availability of drugs. This will inevitably lead to a conflict between the original research drug companies's encouragement of innovation and the market competition of generic pharmaceutical companies; the future drug industry is very likely to appear product hopping behavior. In view of the fact that the anti-competitive effects caused by product hopping behavior are consistent with the goals of antitrust laws and regulations, China should build an anti-monopoly regulation framework suitable for the country's drug industry product hopping behavior from the perspective of anti-monopoly law regulation.

     

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