Expansionist intellectual property protection and reductionist competition rules: A trips perspective

Abstract

The article is divided into two parts. In the first, an examination of the competition rules in the TRIPS Agreement confirms the authority of Contracting States to develop their own antitrust policy regarding IP-related restrictive practices, provided this is done consistently with the TRIPS principles of IP protection. In the second part, the preceding analysis is confronted with the new reality of IP policies, the changed function and modes of exploitation of protection in the innovation-driven, globalized high tech economy. I argue that the backward-looking focus of TRIPS competition rules on technology dissemination does not match the actual trend of cooperation-based innovation, since, there, a level playing field may only be established by early participation in the innovation process and by early access to enabling information. As industrialized countries have revised their competition policy with a view to supporting group innovation and additionally enhancing the incentives resulting from IP protection, referral to TRIPS competition rules as a model for domestic antitrust law might contribute to deepening rather then overcoming the technology dependence of developing countries.