The Interface of Competition and Intellectual Property Law – Taking Stock and Identifying New Challenges

Forthcoming in Liber Amicorum Frederic Jenny

25 Pages Posted: 5 Dec 2018

See all articles by Pedro Caro de Sousa

Pedro Caro de Sousa

Organization for Economic Co-Operation and Development (OECD)

Date Written: November 6, 2018

Abstract

The increasing prominence of the digital economy, a vital sector driving economic growth, is reflected in the increasing focus that competition authorities devote to intellectual property-intensive and high technology industries. This brings into relief longstanding tensions between competition and intellectual property (IP) laws. IP rights challenge some traditional assumptions about the benefits of competitive markets, in that they protect innovators from some forms of competition, thereby allowing them to price above competitive levels for a period of time. This conflict is more apparent than real, however, as competition law and policy encourages the innovation that IP rights promote. Ultimately, both policies seek to promote consumer welfare, economic growth and innovation.

At the same time, the interface between competition and IP law raises significant challenges regarding how the two regimes relate to each other, particularly in areas where they overlap. Approaches to the relationship between competition and IP laws s have evolved over time, moving from the application of formalistic rules to a contemporary focus on the effects of IP-related practices. Even following these developments, new challenges regarding the interface between competition and IP laws keep arising as the economy evolves, new business practices develop and potentially anticompetitive conducts are identified.

The goal of this paper is to provide an overview of the competition/IP interface, with a focus on identifying the main challenges that competition law faces in this respect at the moment. Its purpose is merely to identify challenges that the competition law community will likely face in coming years at the interface with IP laws and areas worthy of research.

With this goal in mind, the paper is structured as follows. Part II of provides a very brief recapitulation of the tensions between, and common goals of IP and competition policy. Part III reviews how the interface between IP and competition laws and policies has evolved throughout the years, concluding with a description of the current international consensus regarding this interface. Part IV then addresses current areas of tension between IP and competition. Part V concludes.

Keywords: IP Law, Competition Law, Innovation, Standard-Setting, FRAND

JEL Classification: K19, K21, K29, O30, O31, O34,

Suggested Citation

Caro de Sousa, Pedro, The Interface of Competition and Intellectual Property Law – Taking Stock and Identifying New Challenges (November 6, 2018). Forthcoming in Liber Amicorum Frederic Jenny. Available at SSRN: https://ssrn.com/abstract=3279355 or http://dx.doi.org/10.2139/ssrn.3279355

Pedro Caro de Sousa (Contact Author)

Organization for Economic Co-Operation and Development (OECD) ( email )

2 rue Andre Pascal
Paris Cedex 16, 75775
France

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