Convergence between Competition Law and Intellectual Property

Background:

The protection given for intellectual property law protects exclusive rights given as patents of the inventions, models, industrial designs, copyrights and others. These rights are given in order to be used as incentives for investment and innovation, and also as identifiers of the good reputation and quality of the product or of the enterprise that is the supplier. In this way, consumers want to obtain products and services, protected by intellectual property rights, with good prices and distinguishable from similar products in the market. On the other hand, the main function of competition is to promote economic efficiency; preserving the competitive framework as the most appropriate means to ensure the efficient allocation of economic resources.

The interplay between intellectual property rights and competition law is very important for the maintenance of a competitive and dynamic economic climate. In fact, the system of intellectual property protection is needed, with the risks that this often entails, as a precondition for innovation. The technical progress that this promotes in turn creates an increase in competition at the level of research and development. Competitors will therefore be encouraged to participate in innovation.

According to this point of view, intellectual property and the protection of competition are to be regarded as equal and necessary elements of a dynamic legal and economic system, but this does not imply that all such interactions are without dispute. It is important to understand that there is no uniform approach to the relationship between competition law and intellectual property law. However there are strong differences in doctrine regarding the general criteria for resolving conflicts between these two areas. This causes a lack of clear rules to follow for companies interested in technology transfers and in the signing licensing agreements.

Therefore, we believe that while there is an interface between the defense of free competition and intellectual property protection, this does not mean that there is a collision between the two but that there are some areas where disputes can occur. These disputes should be regarded as exceptional situations because in fact, exclusive rights encourage innovation and technology generation to benefit society. In this topic, INDECOPI is in a strategic position because is in charge of the Defense of Competition and Intellectual Property Protection. This position allows us to better identify disputes and to solve them appropriately.

Accordingly, we have identified that the main disputes between intellectual property and competition are regarded to be: the abuse of dominant position by the holder of an intellectual property right; compulsory licenses when an abuse of a dominant position previously was determinate; and for public necessity, urgency or national emergency.

We believe that is very important to study both disciplines, to understand the dynamic in each country and how to face the disputes that can appear in their interplay. To achieve this goal is very important to know the experiences of academics and authorities of different countries.

 

Objectives:

To other interested professionals and academic for participation and involvement in the study of the convergence between intellectual property and competition. The main idea is create a space of investigation where professionals and academic can interchange their experiences and finally, and with all this information, work on a paper that will make recommendations to address disputes that may appear between intellectual property and competition.

 

Project Plan:

Phase 1: Disseminate questionnaires related to the convergence between intellectual property and competition.
Phase 2: Interchange of experiences and knowledge.
Phase 3: Use the results of previous phases to publish a paper. The utility of the paper will be the recommendations concerning addressing disputes that may appear in the interaction between intellectual property and competition. It is expected that these recommendations will be useful for both authorities and academics.

 

The project is currently in Phase 1.

 

Contact

Patricia Sarria Pardo
Chairman Advisor
INDECOPI, Peru
E-mail: psarria@indecopi.gob.pe

Juan Luis Crucelegui
Chief, Capacity Building and Advisory Services Section
Competition and Consumer Policies Branch (CCPB)
UNCTAD
E-mail : Juanluis.Crucelegui@unctad.org

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