IPRs are essential for the innovation,
creativity and diffusion of technology
where as competition law is essential
to prevent the anti-competitive
practices. However many of the IP
licensing practices like tying, grant backs
and pooling are not intrinsically
restrictive in nature. The restrictive
practices in this particular area have
been given way for the “rule of reason”
approach. On other hand Competition
forms the basis for the companies for
earning profits. Ever y countr y’s
economic structure differs from
another according to the laws and
regulations and the economic
structure of the country. India follows a
mixed economy due to which all the
market structures are applicable to the
country varying from one sector to
another sector. Competition law is a
newly emerged legislation and has
been adopted by the emerging
developing and developed nations to
suit their market structures. All in all
every country’s competition law focus
on controlling the anti-competitive practices such as dumping,
price fixing etc, mergers and acquisitions which are likely to have
an adverse effect on the market sector and restricting those
practices which are likely to restrict the free trade and economy.
Innovation forms the basis for the development.
CONFLICT OF
INTELLECTUAL
PROPERTY RIGHTS IN
COMPETITION LAW
COMPETITION LAW AND IPR: HISTORICAL PERSPECTIVE
The competition law of India was enacted after repelling the
Monopolistic and Restrictive Policy Act of 1969 by the Raghavan
Committee which has been reflected in Section 66 of the
Competition law of India. The three main provisions of the said
Act has been reflected in the Section 3 , Section 4 and Section 5
and 6 of the act stating “Prohibition of Anti Competitive
agreement” , “ Abuses of Dominant position”
and “
Combinations” respectively. The distinguishing feature of this
particular law is that abusive use of the IPRs is given no room for
abusing the competition level in the market. Intellectual property
protection per se is not abusive but ironically, if it dominates over
the market it is only doing a legitimate job of its purpose, namely
to create to incentive for further innovation. However, when
companies refrain from licensing their intellectual property to
competitors, they undermine the basic tenets of competition law
as well as the spirit of intellectual property protection.
NEXUS BETWEEN IPR AND COMPETITION LAW
The objective of the competition law involves two faces firstly
protect consumer welfare secondly the economic freedom of
market players. When a patent holder adopts any kind of anticompetitive practices, governments can adopt measures like the
compulsory licensing of such technologies which has been stated
in the 31(b) of the WTO Trade Related Aspects of Intellectual
Property Law (TRIPs) Agreement. The various sections which
speaks about forming a nexus with two laws are:
Section 3(5) of the Indian Competition Act which exempts
reasonable use of such inventions from the purview of
competition law,
~TRISHLA SANYAL
[AKK NEW LAW ACADEMY, UNIVERSITY OF PUNE, PUNE]
Section 4(2) of the Indian Competition Act which makes the
action by enterprises to be treated as abuse be equally
applicable to IPR