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Edited by Josef Drexl
Chapter 18: Competition Policy and Intellectual Property in the WTO: More Guidance Needed?
Robert D. Anderson* 1 Introduction Recognition of the legitimate role of competition policy vis-à-vis intellectual property rights (IPRs) and licensing practices is an important element of the overall balance embodied in the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS). The relevant provisions acknowledge that ‘licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology’ and stipulate that WTO Members ‘may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control’ practices constituting ‘abuse[s] of intellectual property rights having an adverse effect on competition in the relevant market’.1 As examples of such practices, the Agreement refers to exclusive grant-back conditions, conditions preventing challenges to validity and coercive package licensing.2 These provisions reflect concerns regarding the potential anti-competitive effects of IPRs protected under the Agreement that were expressed particularly by developing countries during the negotiation of the Agreement in the course of the Uruguay Round of multilateral trade negotiations.3 * The chapter has been prepared strictly in the author’s personal capacity. The views expressed must not be attributed to the WTO, its Secretariat, or any of its Member governments. 1 See Article 40(2) TRIPS. In addition, Article 8(2) provides that ‘Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade...
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