Antitrust, Patents, and Developing Nations

Details

Author(s):
Publish Date:
February 1, 2009
Publication Title:
Antitrust, Patents, and Developing Nations, in The Development Agenda: Global Intellectual Property and Developing Countries Neil Weinstock Netanel, ed., New York: Oxford University Press, February 2009 / Stanford Law and Economics Working Paper, No. 371
Publisher:
Oxford University Press
Place of Publication:
New York
Editor(s):
  • Neil Weinstock Netanel
Format:
Book, Section
Citation(s):
  • John Barton, Antitrust, Patents, and Developing Nations, in The Development Agenda: Global Intellectual Property and Developing Countries, Neil Weinstock Netanel ed., New York: Oxford University Press, 2009. Also Stanford Law and Economics Working Paper, No. 371 (2009).

Abstract

In the developed world, antitrust policy has traditionally been a foil to intellectual property (IP). There are now serious concerns that the world’s IP system, including both rules created by national legislation and those created by international agreements, is stronger than is the economic interests of developing nations. A stronger antitrust law might be a valuable response.

This article, therefore, examines the actions that developing nations might take in the antitrust area, looking both at national legislation and at international analysis and explores how to pursue such approaches consistently with current law in the area. The article concentrates on patents but considers copyright law where that law affects technological innovation, as in the case of software. The article does not explore other areas of antitrust laws such as the general treatment of Intellectual Property rights, which noted the possible role of antitrust law but did not explore it in depth because antitrust law proved less relevant to the poorest nations than did the basic access issues explored in that analysis. Nor, except in passing, does the article consider compulsory licensing based on broad principles, such as those included in TRIPS Article 3I3 of the Doha Declaration.

The Article avoids emphasizing specific technical doctrines, emphasizing instead the various economic standards that permeate antitrust practices. It considers three important contexts: the response to a (generally foreign) monopolist, the response to a (generally primarily foreign) global oligopoly or cartel, and the management of relations between a major (generally foreign) firm and a local licensee.