Balancing 'Incentive to Innovate' and 'Protection of Competition': An African Perspective on IPRS and Competition Law

Abstract

This paper discusses the interface(s) between IP and Competition Law from a Sub-Saharan Africa perspective. It analyzes the essential facility doctrine raised in the Glaxo Smith Kline case which was settled by the South African Competition Commission against the backdrop of the EU line of case law. This contribution “reopens” the settled case and provides some insights on the legal challenges (and economic implications) that the case would have raised if it had followed the Magill approach with the new product rule for which there is a consumer demand.

The EU line of case law seems to emphasize more the need to promote innovation as evidenced by the “innovation surplus” requirement. However, for countries that are importers of technology where local innovation is limited or nonexistent, the “innovation surplus requirement” would be difficult to meet. Access to existing technology or to patented products would therefore be limited.

From a consumer-interest perspective of a developing or technology-importing country, access to technology, in some cases, is more relevant than innovation in the first place.

In addition to the discussion pertaining to “innovation” and “access”, the paper takes a transversal approach and shed light on the treatment of IP related issues in selected Sub-Saharan African countries competition laws. Suggestions as to how to foster competition law enforcement in IP related restrictions of competition are put forward in the concluding remarks.

Keywords: Innovation, Competition Law, IPRs, Africa