Competition Law, Technology Transfer and the TRIPS Agreement

Competition Law, Technology Transfer and the TRIPS Agreement

Implications for Developing Countries

Tu Thanh Nguyen

The book investigates competition law and international technology transfer in the light of the TRIPS Agreement and the experience of both developed and developing countries. On that basis, it draws relevant implications for developing countries.

Chapter 2: Application of Competition Law to Technology Transfer in Developed Countries – US and EU Perspectives

Tu Thanh Nguyen

Subjects: law - academic, competition and antitrust law, intellectual property law, international economic law, trade law


2.1 2.1.1 BACKGROUND Introduction Development of the IP–antitrust law intersection in the US In response to growing public concern over the oppressive use of the economic power of business trusts, the US Congress enacted the Sherman Act in 1890.1 Section 1 of the Act, aiming at concerted (or multiple-firm) actions, prohibits ‘every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations’. Meanwhile, Section 2, aiming at unilateral (or single-firm) actions, prohibits conduct which is implemented to ‘monopolize, or attempt to monopolize, or combine or conspire … to monopolize any part of the trade or commerce’. In 1914, the Clayton Act and the Federal Trade Commission Act were enacted to ensure that particular allegedly anti-competitive practices, mergers for instance, would also be efficiently addressed by antitrust law, and to grant antitrust jurisdiction to the FTC in addition to that already possessed by the DOJ.2 These antitrust laws, which have been refined through various amendments over the years, in general, and the Sherman Act in particular, are regarded as ‘the Magna Carta of free enterprise’,3 having as they do the aim of preserving competition, i.e. economic freedom and a free-enterprise system. 26 Sta. 209 (1890), codified as amended, 15 U.S.C. 1–7. Clayton Act, 38 Sta. 730 (1914), codified as amended, 15 U.S.C. 12–27; Federal Trade Commission Act, 38 Sta. 717 (1914), codified as amended, 15 U.S.C. 41–58. In addition to Sections...

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