12 The Intellectual Property–Competition Interface

This chapter focuses on the interface between intellectual property and competition laws. The interface is the most complex between competition law on the one hand and patent law on the other hand. Developing countries only engage in what can be called laggard innovation, which includes acquisition of tacit knowledge, imitation, and process innovation. This may call for a reconsideration of the appropriate approach to the patent–competition interface in developing countries because laggard innovations, with the exception of process innovation, are not the subject of protection of the patent system. If laggard innovations are not the subject matter of protection of the patent system, the patent-competition rules should have little relevance for the quest for innovations in developing countries. In fact, one can argue that the patent system is an impediment to one of the main sources of laggard innovation, imitation, and that the patent-competition rules should be adjusted in a way to facilitate it if one were serious about adopting a pro-growth approach to competition law enforcement in developing countries. This implies that for developing countries that do not produce patentable innovations, there is no need to balance between patent and competition policies. There is in fact no conflict between these two policy objectives. Intellectual property rights and Market-sharing and customer allocation Enforcement and procedure