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 5: Implications for Developing Countries

Tu Thanh Nguyen

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

Extract

5.1 PURPOSES AND PRINCIPLES IPR-related anti-competitive practices have recently (re-)gained much attention in the WTO, WIPO and developing countries. There is growing awareness in developing countries of the adverse effects of these practices on their technological level and economic development, as well as their population. They are increasingly recognizing the potential benefits deriving from technology transfer-related competition law enforcement. However, the intersection between competition law and IPRs is complex and not easily managed in practice, especially in developing countries. Developing countries should develop and improve their competition law to complement strong IP regimes, which they have adopted under the TRIPS Agreement and even TRIPS-plus standards embodied in bilateral or regional trade agreements. The TRIPS Agreement, as noted, creates the core international commitments providing minimum standards under which WTO Members have to protect the IP of nationals of other WTO Members. It is undoubted that this agreement also sets up balanced mechanisms for IP protection, on the one hand, and the transfer of and access to technology, on the other. One essential factor for a balanced mechanism relates to the interaction of IP and competition laws. From the competition law perspective, the TRIPS Agreement provides competition flexibilities, which developing country Members may apply to control anti-competitive practices in technology transfer and promote access to technology. Developing countries should appropriately take advantage of these flexibilities to maximize the benefits of domestic competition law and minimize the social costs of adopting a strong IP regime under the TRIPS Agreement. However, there remain...

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