Competition policies in major developed countries or regions generally take a favourable attitude to intellectual property rights (IPRs). But intervention may be undertaken where a pragmatic case-by-case analysis indicates IPR-based market power is unreasonably restraining competition in relevant markets. There is concern about cartel-like restraints, exclusionary conduct and monopoly leveraging by dominant firms, refusals to license IPRs or to sell IPR-protected products, practices or mergers which may chill technological innovation (including those relevant to proprietary de facto standards, interoperability, access to essential facilities and network effects) and the effects of over-broad grants of IPRs. Despite the general consensus in developed countries or regions about the appropriate treatment of the competition policy/intellectual property interface, there remain important differences with regard to specific issues. Other countries or regions, despite sometimes touching upon IPR questions in their competition legislation, have limited experience in this area. Taking into account the competition policy issues likely to arise as the TRIPS Agreement is implemented, the growing international nature of innovative activity, global network effects in information industries, the possibly international reach or effects of competition remedies, and the risks of inconsistency between competition and IPR authorities, and among countries, there is likely to be a greater need for, and recourse to, consultations, technical assistance and international cooperation in this area, including consultations in pursuance of the TRIPS Agreement. Efforts would therefore be required to build up mutual understanding and trust in this area. Accordingly, in order to fulfil the mandate provided in this area by the Fourth Review Conference, the Group of Experts may wish to hold consultations on: (a)Typical IPR-based practices, and their motivations and effects (with priority to territorial exclusivity and parallel imports, exclusive dealing, tying requirements and exclusive grant-backs); (b)The conceptual basis, criteria and methodology used in different jurisdictions, or which would be appropriate, for undertaking economic analysis and applying remedies in this area, both in general and in relation to specific practices, abuses of dominance or mergers involving IPRs, or to industries involving high technology or network effects, illustrated by reference to hypothetical or real cases; (c)Whether and how competition authorities might use their competition advocacy powers to participate in on-going debates on the appropriate scope and application of IPRs, and to consult with IPR authorities; (d)The extent to which competition policy treatment of IPRs should be influenced by national particularities; and (e)The conditions and mechanisms for strengthening international cooperation in this area. 2.The Group of Experts may also wish to request the UNCTAD secretariat to undertake, taking into account such consultations and information provided by member States, a comparative review of the competition law and policy treatment of IPR-based practices in the Commentaries to the Model Law and technical cooperation efforts to build up expertise in this area in developing and transition countries
LOCATION
CALL#
STATUS
International Institute for Trade and Developement : UNCTAD Collection
