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Abstract:
The competition-related provisions in the TRIPS Agreement were very much influenced by the context in which the Agreement was concluded. The inclusion of competition provisions served a specific purpose. Competition law was basically seen as a tool to facilitate the transfer of technology. Twenty years after the entry into force of TRIPS, the legal landscape within which IPRs are exercised has experienced tremendous changes on the IP front, as well as on the competition law front. IP protection tends to be raised beyond the minimum standards of TRIPS, questionable protection has been granted specially in the field of patents, enforcement mechanisms and remedies have been strengthened and IP portfolios are strategically used in the markets. From an international perspective, higher IP standards have been exported through bilateral and regional trade agreements. Competition law is developing at a very fast speed, especially in emerging and developing economies. Moreover, competition law and IP laws are increasingly understood as being complementary to each other. A strict and “conflict oriented” reading of TRIPS’ competition provisions does not help to cope with the new strategies of innovation and the new forms of use of IPRs. We argue in this paper that a flexible reading of the competition-related provisions in TRIPS provides enough room for applying competition law as an innovation instrument. Hence, the application of competition law to combat IP-related restraints of competition that inhibit innovation would be covered by the rationale of the TRIPS Agreement just as much as an application of competition law aimed at enhancing access to and dissemination of IP-protected products.
