Sofosbuvir case in Brazil is well analysed in a new publication of Prof. Carlos Correa and Prof. Reto M. Hilty. Considering the challenging public health situation, a group of nine different Brazilian civil society organizations, representing both patient, consumers, and human rights groups, as well as the Public Defenders of Brazil, filed a joint formal notification to the competition authority (CADE - Conselho Administrativo de Defesa Econômica/Brazilian Administrative Council for Economic Defence) to request of an investigation for abusive anti-competitive practices (both excessive pricing as abuse of dominant position and abuse of patents) and asking for adequate measures to be taken, including issuing a compulsory licensing for sofosbuvir on the grounds of an anti-competitive conduct.
A preliminary administrative investigation was indeed launched by CADE, but the case remains open. While there seems to be more space for a competition authority to address the case than judicial courts, the stronger pressures on administrative bodies by government and interested private companies (patent holders) make the results uncertain. Subsequent steps are largely dependent on how the institution decides to perform or not such role. The authors stressed that these and other cases may be understood as part of global and transnational law, which may help to elucidate how specific courts are part of global economic governance, even as national decisions, with developing countries having an ever-growing importance in intellectual property jurisprudence.
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