IP and Competition Policy

Intellectual property (IP) allows consumers to make choices between competing entrepreneurs, and the goods and services they sell. Therefore, IP is inherently pro-competitive as it ensures the protection of differentiated, intangible business assets.

Without IP, less efficient manufacturers and service providers would try to lure clients by copying the goods and services of more efficient competitors. The latter would lose any incentive to improve or to offer new products and services. Society as a whole would lose. But IP only performs that crucial role of ensuring competition when it protects genuine differences.

(Photo: iStockphoto.com/petesaloutos)

The interface between IP and competition policy can arise from the following sets of issues:

Too much IP: When IP is unduly extended so as to grant exclusivity over non-differentiating features (such as patents for technical features that do not qualify as inventions and trademarks for common, non-distinctive words) it is anti-competitive.

Too little IP: When efficient enforcement means are not available or when genuinely differentiating features cannot be protected, imitation follows.

IP in the right dosage: It is inherently pro-competitive but sometimes IP in the right dosage (neither too much nor too little), can generate an embarrassment to consumer’s right of free choice. This happens when IP rights are abused, or used in a way contrary to the objectives of the Law. It may also happen that IP in the right dosage can be associated with certain circumstances that make it difficult, impossible or inconvenient for competitors to seek alternative ways of attracting consumers. This is the case, for example, when patented technologies become industrial standards, or when the obtaining of test data implies the risk to the health and well-being of humans and animals. In the first case, it is impossible for competitors to create alternative, different technologies. In the second case, duplicating tests to obtain the same data causes unnecessary and socially unjustified harm.

Research

Studies and surveys

  • Survey on IP, Joint R&D and Competition (June 2015) PDF, WIPO Survey on IP, Joint R&D and Competition (June 2015)
  • WIPO Survey on the Antitrust Dimension of IP Licensing Agreements in Support of Technology Transfer (March 2015) PDF, WIPO Survey on the Antitrust Dimension of IP Licensing Agreements in Support of Technology Transfer (March 2015)
  • Patents and Small Participants in the Smartphone Industry (January 2015) PDF, Patents and Small Participants in the Smartphone Industry (January 2015)
  • An Overview of Cade's Recent Jurisprudence regarding IP (December 2014) PDF, An Overview of Cade's Recent Jurisprudence regarding Intellectual Property (December 2014)
  • Study on Patent Pools and Antitrust - A Comparative Analysis (March 2014) PDF, Study on Patent Pools and Antitrust - A Comparative Analysis (March 2014)
  • Study on Copyright, Competition and Development (December 2013) PDF, Survey on Technology Transfer Agreements and Antitrust
  • Survey on Technology Transfer Agreements and Antitrust (December 2013) PDF, Survey on Technology Transfer Agreements and Antitrust
  • Study on refusals to license IP Rights (August 2013) PDF, Study on IP license rights rejections
  • Study on the impact of the acquisition and use of patents on the smartphone industry (publicly released by WIPO in June 2013) PDF, Study on the impact of patent usage and purchase on the smartphone industry
  • Study on the Anti-Competitive Enforcement of IP Rights: Sham Litigation (April, 2012) PDF, Study on anti-Competitive enforcement of intellectual property (IP) rights: sham litigation
  • Survey on Compulsory Licenses Granted by WIPO Member States to Address Anti-Competitive Uses of IP Rights (October 2011) PDF, Survey on compulsory licenses issued by WIPO member states to address anti-competitive usage of intellectual property rights
  • Survey on Measures to Address the Interface between Antitrust and Franchising Agreements (June 2011) PDF, Survey on measures to address the interface between antitrust and franchising agreements
  • Analysis of the Economic/Legal Literature on the Effects of IP Rights as a Barrier to Entry (January 2012) PDF, Analysis of the economic and legal scientific literature on the results of intellectual property rights as a barriers to entry
  • Interaction of Agencies Dealing with IP and Competition Law: Summary of Replies of Member States (June 2011) PDF, Interaction of bodies dealing with intellectual property and competition law
  • Studies on the Interface between Exhaustion of IP Rights and Competition Law (April 2012) PDF, Studies on the Interface between Exhaustion of IP Rights and Competition Law
  • IP and Competition as Complementary Policies: A Test Using an Ordered Probit Model (2007) PDF, IP and competition as complementary policies

Events

National seminars

Organized to deepen the understanding of the interface between IP and competition law and facilitate the dialogue among national governmental agencies.

International roundtables

To enable a dialogue between national IP offices and competition authorities of the same region or the same group of countries.

Other related meetings

Cooperation

National competition and IP authorities in Brazil and Chile have recently signed Memoranda of Understanding (MOUs) concerning technical cooperation and information sharing.

The discussions leading up to the signing of such MOUs are important to ensure that both authorities understand the interaction between IP and competition law and the risks associated with too much or too little IP. For example, in many countries, IP standards are established by parliaments, but IP authorities invariably keep a broad authority of discretion in assessing registrability. Also, in enforcing antitrust law, national competition agencies are frequently confronted with IP-related issues.

The scope of the technical cooperation outlined in MOUs between these authorities may cover:

  • Exchange of technical information and knowledge between the respective technical bodies;
  • Consultancy services - for the definition of procedural routines, guidelines and standards in the joint treatment of mergers or anti-competitive practices which involve intellectual property;
  • Studies - on the relationship and interface between intellectual property and antitrust;
  • Training - of human resources from both entities on IP and competition policy issues deemed relevant;
  • Promotion and information dissemination– of the standards and principles of IP and free competition, or publicizing the respective functions of both authorities among consumers and users of their services
  • Draft proposed regulations - on the basis of analyses and studies, which lead, within the scope of the Agreement, to integrated measures for case resolution.

WIPO can assist IP offices from member states in developing such agreements.

For more information, contact us.

External links

Related links

Cooperation

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