Meena Alnajar is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School .

A protects your intangible property from others’ use, but what happens when patent protection operates in a way that ensures no other innovators can build upon a patented invention? When IP and competition clashes, authorities will step in to regulate as demonstrated in a recent dawn raid.

On September 13, 2022 the Swiss Competition Commission (“COMCO”) the pharmaceutical company Novartis’ headquarters in Switzerland at . A rather unusual visit, COMCO proceeded to raid the company’s headquarters for all information related to an unidentified . According to the regulator, the drug’s patent could be a blocking patent used to prevent competing products’ entry into the market. Novartis is allegedly protecting its dermatology drug by using one patent to launch proceedings against possible competitors in the market. Here we see IP and competition law colliding with blocking patents wielded as an anti-competitive tool.

A blocking patent can prevent another inventor from using the patent’s technology or improving it. A blocking patent is often cited by during the patent application examination phase to block a patent application or a patent’s challenger (such as those claiming an existing patent should be invalid). On July 22, 2021, held in Chemours v. Daikin that “[a] blocking patent is one that is in place before the claimed invention because such a blocking patent may deter non-owners and non-licensees from investing the resources needed to make, develop, and market such a later, ‘blocked’ invention.” A blocking patent is therefore broad in scope to deter people from innovating in any way related to the blocking patent. Overall, these patents are a helpful business tool, blocking a competitor to conserve the patent’s commercial success while also observing where competitors are attempting to . But when too successful, the blocking patent has a on competition. Innovators’ fear of overtakes their willingness to build on the invention and the blocking patent becomes an anti-competitive red flag to regulators.

In the Novartis , authorities are questioning whether Novartis is acting appropriately with its drug patent. The investigation is still in its and in the company have slightly fallen after the raid was announced. Regulators unexpectedly taking a business’ commercially sensitive information is not ideal. The investigation thus raises a further question, when does a business’ patent portfolio become anti-competitive and subject to a raid?

Patent rights and anti-competitive practices can overlap. Patent holders should take action to ensure that their IP use does not violate their jurisdiction’s competition law. Balance must be maintained in the patent system through the : setting strict patent content boundaries, preventing exclusive licensing that stops other competitors from market entry, and preventing restrictive selling practices where patent rights are used to price fix. While blocking patents can close the doors to competitors, these patents can open the doors for someone else, like regulators, to come in and conduct their information raids.

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Pankhuri Malik is an Osgoode LLM Graduate, IPilogue Writer and IP Innovation Clinic Fellow.

In a landmark , Novartis has signed a Voluntary Licensing Agreement with the for its nilotinib drug, used in treating Chronic Myeloid Leukemia (CML) in adults and children as young as a year old. Nilotinib is the first cancer treatment drug and the first drug for the treatment of to be voluntarily licensed in a public health initiative.

The MPP is a public health organisation funded by and backed by the United Nations. The MPP  aims to facilitate access to life-saving medicine in low- and middle-income countries. So far, the MPP has signed agreements with 18 patent holders, MSD and Pfizer, for treatments for tuberculosis, COVID-19, Hepatitis C and HIV.

Nilotinib is a second-generation tyrosine kinase inhibitor offered to patients resistant or intolerant to imatinib. It is administered as an oral medication twice a day. The World Health Organization first added it to its list of Essential Medicines in 2017.

The coincided with the World Cancer Congress’s announcement that nilotinib is now free for development, manufacture and supply in seven countries including Egypt, Guatemala, Indonesia, Morocco, Pakistan, Philippines and Tunisia, subject to local regulatory approvals. MPP’s Executive Director Charles Gore acknowledged that while the remaining term for nilotinib's patent is not significant, with the patent expiring in the US on July 4, 2023, this move is a precedent for MPP’s expansion into drugs for non-communicable diseases. In terms of revenue, nilotinib accounted for for Novartis last year.

This move comes in the wake of Novartis and MPP joining the Access to Oncology Medicines Coalition (ATOM) in May 2022. ATOM is a global initiative led by the Union for International Cancer Control (UICC) to improve access to cancer treatment in low- and middle-income countries. The World Trade Organisations’ Agreement on the Trade Related Aspects of Intellectual Property Rights already provides waiver from patent obligations to the least developed countries. Further, the phase-out period for the waiver has been till January of 2034. Patent protection is only one of many factors that hamper this access.

Since the remaining term of the patent is less than a year, the footprint of this license probably will not be significant. Though, with around Big Pharma’s chokehold on the healthcare industry increasing, this may prove to be a bargaining chip for further discussion on licensing of life-saving medicine in low- and middle-income countries.

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