Thursday, June 4, 2009
Posted by D. Daniel Sokol
ABSTRACT: In the developed world, antitrust policy has traditionally been a foil to intellectual property (IP). There are now serious concerns that the world's IP system, including both rules created by national legislation and those created by international agreements, is stronger than is the economic interests of developing nations. A stronger antitrust law might be a valuable response.
This article, therefore, examines the actions that developing nations might take in the antitrust area, looking both at national legislation and at international analysis and explores how to pursue such approaches consistently with current law in the area. The article concentrates on patents but considers copyright law where that law affects technological innovation, as in the case of software. The article does not explore other areas of antitrust laws such as the general treatment of Intellectual Property rights, which noted the possible role of antitrust law but did not explore it in depth because antitrust law proved less relevant to the poorest nations than did the basic access issues explored in that analysis. Nor, except in passing, does the article consider compulsory licensing based on broad principles, such as those included in TRIPS Article 3I3 of the Doha Declaration.
The Article avoids emphasizing specific technical doctrines, emphasizing instead the various economic standards that permeate antitrust practices. It considers three important contexts: the response to a (generally foreign) monopolist, the response to a (generally primarily foreign) global oligopoly or cartel, and the management of relations between a major (generally foreign) firm and a local licensee.