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Rethinking Intellectual Property

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini

Intellectual property law is built on constitutional foundations and is underpinned by the twin freedoms of freedom of expression and freedom of economic enterprise. In this thoughtful evaluation, Gustavo Ghidini offers up a reconstruction of the core features of each intellectual property paradigm, including patents, copyright, and trademarks, suggesting measures for reform to allow intellectual property to become socially beneficial for all.
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Chapter 5: On the ‘intersection’ between IP and competition law(s)

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini


The subject matter of this chapter is usually approached from the perspective of the relationship between IPRs regimes and antitrust law, having regard, in particular, to the circumstances and manners in which the latter acts to prevent or sanction significant foreclosures of competition originated from or (anyway) related to the exercise, or the entitlement itself, of the former.

This perspective, albeit of paramount importance, is by no means exhaustive, in two respects – (A) the pro-competitive profiles of the IPRs regime and (B) rules on unfair competition.

On the one hand, said perspective fails to highlight the many pro-competitive features built into IP law: ‘antibodies’ that a watchful eye can detect within the IPRs regime. The consideration of such antibodies could, in several cases, prevent the very emergence of IPRs entitlement and/or quench the excluding impact of IPRs – thus also preempting the need to ‘call in’ antitrust as the white knight capable of restoring workably competitive market conditions (thus also allowing competition authorities to focus on more urgent cases requiring the systemic correction of practices severely distorting competition).1 This aspect is here recalled for the sake of completeness of the overall reconstruction of the concept of the ‘intersection’.

Let me briefly recall, for each basic paradigm, just one example of the said pro-competitive ‘antibodies’, whose spectrum has been extensively analysed in the preceding chapters.

Patents   Keeping a tight hold on the helm of a selective notion of ‘non-obviousness’/...

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