The Article explores the mini-body of antitrust provisions to be found within TRIPs. It advocates a general-principles based and systematic interpretative approach of these provisions with a view to finding in them an antidote to the ratcheting up of IP protection otherwise encouraged by TRIPs. In this framework, it is argued that member countries retain considerable flexibility to incorporate pro-competitive inputs and to give appropriate consideration to non-intellectual property interests in adopting legislation at the intersection of antitrust and IP. The Article further develops criteria to assess the TRIPs-compatibility both of antitrust intervention and of generalized, ex ante legislative measures intended to fine-tune the design of IP regimes to adequately take into account the interests of current users and future generations of innovators. Five case studies are presented discussing technology transfer, local working requirements in patent laws, refusal to deal in IP, essential facilities doctrine and software patents, with a view to testing the hypothesis in the light of the first reports by WTO panels in intellectual property cases. In this perspective, it turns out that, while consideration of TRIPs antitrust provision does not provide a complete remedy to IP overprotection, still it may make a significant contribution towards granting member states fluidity in designing their IP regimes.
Is there an Antitrust Antidote against IP Overprotection within TRIPs?,
10 Marq. Intellectual Property L. Rev. 305
Available at: https://scholarship.law.marquette.edu/iplr/vol10/iss2/6