IPR & Competition Law: An Overview and its Implications

I. Introduction

As we study Intellectual property laws and competition laws, we get to know that there is a connection between these two laws because both ultimately give a monetary benefit to the owners. These are two separate laws that evolved during different times. Though the objective of both of the laws is the same. Here the IP rights are to safeguard the rights and interests of the owners or makers and uphold social interests. IPR provides a bundle of rights to the owner to exploit the property without unauthorized use of it by others for a limited period. On the other side competition law is a set of laws that seeks to promote a healthy economy by regulating the market conditions. It is regarded as the mechanism which cancels anti-competitive agreements or for promoting the abuse of the dominant position and also for efficient allocation of resources. These are two main areas of law that deal with the market and the promotion of social welfare. These are both related in a way that ensures a dynamic economy. At first, they seem to be conflicting with each other and they seem to have two different ideas because competition law seeks to discourage monopoly and IPR laws give benefits to owners by giving them exclusive rights, but both these are done to encourage suppliers to produce more in the market. Thus, they can almost seem to be the same and complementary to each other and are considered as the same coin of two sides³. So, it is necessary to understand the functioning of both laws to better understand this. A deeper understanding will let us know that the fact is not always true, and the purposes of the Acts can be complementary.

Reward-based approaches get more care in IPR to promote innovation. The reward was given to the inventor who introduced this idea to society at large. Prohibition of misuse of monopolistic trade is the main object of Competition law. However, when looking into both legislations even though they are conflicting to some extent but they are focusing on economic welfare and the promotion of innovation. Competition law recognizes the right guaranteed to the creator of the work without overlapping of competition Act, 2002. Competition law is intended to protect intellectual property and does not restrict the enjoyment of the dominant position acquired by IP laws. Thus, there needs to have a balanced approach for harmony among the same. Some recommendations were given by the developing economy in relation to this is strengthening and establishing the laws under competition to reduce abuses emerging while exercising IPR laws and to have proper coordination among both the laws, which ultimately aims at maintaining a healthy market. In order to avoid conflicting laws, they should be compatible with each other and flexible policies need to be taken when there is an intersection between those laws. Thus, this paper aims to have an overview of the competition law and IPR law. It analysis the provisions of intellectual property and competition policies in the market and the conflict between the two concepts. And in this study, we are going to cover the concept of competition law and IPR law, and also their relationship.

(A) Research questions

1) What is the impact of Intellectual property rights and the competition laws in the economy?

2) What is the role of the TRIPS agreement in regard to the IPR for supporting the competition policies in a developed economy?

3) What are the possible conflicts that may arise while imposing competition law and Intellectual property rights?

4) What is the Indian scenario with respect to the competition act regard to the competition law and IPR policies?

5) What are the concepts of Intellectual property law and competition law in various jurisdictions and the opinion of different courts while deciding the conflict between competition and IPR law?

6) What are the various ways in which IPR laws can be formed by harmonising with the competition law?

(B) Research objectives

• To discuss the relationship between both the laws, and discuss the various similarities which make them seem to be complementary to each other.
• To study the conventions said under TRIPS with regard to the IPR which supports the competition law policies.
• To analyse the possible conflicts or dissimilarities that may arise between the two laws.
• To know about the stand of Indian provisions said under the competition act and intellectual property laws.
• To discuss the opinion of various courts in different jurisdictions while deciding the conflict between intellectual property and competition law.
• To give various ideas and suggestions which can be taken for the harmonisation and smooth functioning of both the laws in order to improve the production and for providing better quality products to the market and reasonable pricing.

(C) Research methodology

Research methodology is a method used to solve a problem in a structured way. By analysing the method, we get to know how are research should be done. In this, research we used a qualitative based approach which helped us to understand the idea of the selected topics. Qualitative based research means research, which includes collecting and analysing the information and concepts.

Data collection method.

The method of data collection used for this particular study is the collection of data through various secondary sources. Secondary data means those data which is already gathered by other people and used for some other purpose. The research was done after rigorously and carefully studying the various secondary sources which were available to us through internet sources and books.

II. Relationship between competition and IPR

IPR is granting exclusive rights to the inventors for ensuring free use of the product for a limited period. The reward-based approach is taken by IPR for promoting innovation in the economy. So, the inventor can recover the money that they spent on research and development. The Competition law intends to improve economic growth, promoting the efficiency and welfare of consumers. Competition is very much needful for an economy because it gives the motivation to innovate and add to competitiveness. The relation can be easily identified because their policies are bound together in a matter relating to innovation and also the legal rules⁴. The association between competition and IP law can be identified by studying different provisions and from the market economy itself. Different kinds of systems and mechanisms regulate the market economy. There are mainly two kinds of markets, free market and regulated market. In a free market, sellers are free to fix the price for the product and there is no government interference. Whereas in a regulated market, all the action of the market is controlled or regulated by the government. In this case, the ultimate authority is government. The legislation made by the government for the regulated market controls the mechanism and the same is controlling the free play of monopolistic rights in the market and which safeguards the interest of the society⁵.

competition law and IP law is interesting, as well as it is very much important topic so there were many studies are conducted for studying the connection between competition & IP provisions. The intention behind the competition law is to prohibit anti-competitive agreements and abuse of dominant position and also regulate the merger of the entities. Competition law efficiently allocates the resources for the ultimate benefit of the consumers by proving them with better quality and wider choices of products at reasonable pricing. IPR laws strike a balance between the exclusive rights of the owners and benefit of the society. The exclusive right is given to the owner of the creative work to exploit them without misusing the right for a restricted period.

Therefore, it can be concluded that both are related to each other and seem to be complementary in some areas because IP rights give rewards to the inventor for the innovations which may result in the production of more products in the market and ultimately growth of the economy, which is considered to be one of the main objectives of competition laws. So the IP laws and the competition laws are correlated to each other in some respect.

There are certain case laws that clarify the link between IP and competition laws. The dispute in respect of intellectual property law can be brought under the jurisdiction of the CCI of India. In Amir khan production private limited v. Union of India⁶ the court declared that the competition commission of India can also deal with matters of IP laws. It was further reassured in the case Kingfisher v. CCI⁷ case, where the commission dealt with a case that was relating to copyright under IPR. Another landmark case was Ericsson V CCI⁸, in this case, the plaintiff argued that CCI cannot handle cases that involve patents. But the court of Delhi observed

That there are no notable differences between both the acts and they are both related to each other thus the cases were resolved accordingly and remedies were provided⁹.

III. Trips regarding IPR policy and competition law

One of the main agreements made under WTO is trade-related Aspects of Intellectual Property rights, which is commonly known as TRIPS. TRIPS agreements contain certain provisions relating to intellectual property. TRIPS agreement intends to the protection of intellectual property to some standards. Every member country while making their national laws should follow the standards that are prescribed in the TRIPS agreement. Trips agreement recognises seven intellectual property rights.it also recognises the importance of competition policies which is in relation to IPR. These negotiations shall be made in the developing countries that are participants in TRIPS. Recently, the conventions of TRIPS leave the duty to the member countries to expand their competition laws which come in relation to Intellectual property rights.

Compulsory licensing and parallel imports are the two remedies used to prevent the abuse of the dominant position. which makes it clear that every provision of the legislation intends to promote fair competition in the market. The involuntary contract between a willing buyer and an unwilling seller where it is inflicted by the country itself is known as compulsory licensing. Parallel imports are goods that are lawfully placed into the economy even without the backup of the IP rights¹⁰. Through TRIPS the member countries are required to follow the basic standards of IP rights to bring harmony to the domestic laws in the economy. The compulsory licensing are discussed under Article 31 of the TRIPS agreement. The following situations that lead to those are in case of an emergency in the nation when to safeguard the health of the public and prevent the anti-competitive practices in the market.

Many developing countries ensure the protection of fair competition by preventing abusive trade practices and the mis-utilisation of power by the IPR owners. Under the TRIPS agreement Article 40 is dealt with the adverse effect of trade that is pertained in the licensing practices. And also mentions those conditions which may hinder the tradition of technologies. Article 40(2) mentions certain practices of anti-competition in the market¹¹. The provision allows the members to act accordingly in case of any misuse of intellectual property rights which has a negative impact. They can also inculcate certain measures to overcome those.

IV. The conflict between IPR and competition law policies

The IP laws and competition laws are conflicting to some extent and there are so many cases due to the overriding of one upon the other. There are lots of debates between these two fields for a few years. Intellectual property rights are granted to the most efficient creations with the skill or mind of the creator. Such exclusive rights are granted to the works such as innovations, artistic or literary works, designs and marks for a certain period of time¹². The exclusive right of the owner means he has the right to exploit it without misusing the power granted under that particular legislation. IPR includes assurance of intangible property and the right to exclusion of others from exploiting the non-corporeal asset.

Competition law is known as the most effective tool for ensuring fair trade, proper competition by preventing anticompetitive agreements and encouraging resource allocation. Competition law intends the ultimate beneficiary should be the consumer. This law provides a better quality product with indefinite choices in favour of the consumers at a reasonable price. It gives a bundle of regulations that should be followed by the persons who conduct trade in the market which is to promote competition in the market. This law is also made to restrain the misuse of monopoly rights by a dormant company. The welfare of the consumer and fair competition in the market is the well-known objectives of competition law¹³. Well on the behalf of the fact mentioned above it is acknowledged that the Competition Act, 2002 restricts agreements that are anti-competitive in nature. Anticompetitive agreements mean agreements that are relating to production, supply, storage, a distribution that may cause an appreciable adverse effect on the competition. Competition law protects the IP rights to some extent and the laws are not interfere with IP until the IP holder misuse his power. It is crystal clear that IPR and Competition Laws are conflicting with each other even though they intend to achieve the same objective. Monopoly power by intellectual property rights is in play, which is opposed by Competition policy ever since, on the one hand, it is a fundamental law to promote invention while on the contrary, it also encourages the market competitiveness in a healthy way. Few factors take hold like the competition act authorizing the commission to penalize IPR holders who misuse their dominance. Moreover, in contradiction to Act 9 section 3, in section 45 of this act, which provide a penalty to the wrongdoers or to the person who enters anticompetitive agreements. The main concern highlighted in competition law with respect to IPR while granting market power is the appreciable adverse effects caused by the anticompetitive exercise of IP rights. For example, due to market power, setting prices higher than the benchmark can cause harm to the consumers, which may also lead to distorted innovation. Under these situations, the growth of productivity decreases/ limits itself reducing the scope for sustainable living. The trend witnessed here is IP rights was implemented to promote monopoly rights whilst Competitive Law works is designed to oppose them¹⁴. With two measures like a parallel import system and compulsory licensing, IPR monopolies laws are restricted. Hence healthy competition in the market can be seen at macro and microeconomic levels. This provides more legitimate authorisations and debars monopoly rights by surrounding rights under the provisions of TRIPS. These IP laws help in protecting innovations from being exploited unlawfully.

The common goals for these policies are to promote innovations that would further lead to economic growth and hence these laws could co-exist and create development at the economic level and provide benefit to the consumers. As both IP law and Competition law promotes innovation and consumer welfare, they have been cordially constructed to accomplish their objectives. Even though the ideologies are between both laws are different to each other their objectives are meeting with each other.

V. “competition” within the purview of competition and IPR law

‘Competition’ carries different meanings in IP law and competition law. IPR is granted to encourage the proprietor, owner or inventor of a product. it gives exclusive right to the holder of the property to exploit the same and to restrict others from unauthorised use. It promotes competition in the innovation field¹⁵. Meanwhile, competition law is intended to promote competition by preventing anticompetitive agreements, misuse of dominant position in the market and looking the merger and acquisitions of the entities¹⁶. Competition law aims to avoid unfair trade practices in the economy. Under Art.10 (b) (2) of the Paris convention, anything which is contravention to the provisions of honest practices in the trade economy is considered unfair competition. Due care taken by the authority reduces the competition. Unfair trade practices have a wide list like misleading the public, spreading rumours, make confusion, revealing confidential matters.

The competition gives a Reward-based approach to IPR and further in competition law it is for eliminating the anticompetitive actions against the monopoly holders. Right is not a part of competition law but in the case of IPR, the right is granted only in a restrictive manner. But both the legislations covered the concept of competition. Even though Competition law and IPR law are conflicting with each other they are very much concentrated on consumer welfare¹⁷.

VI. Competition and intellectual property rights policy in perspective of the Indian competition act,2002; a balancing approach

Lawmakers recognise conflicts between the IPR and competition law and provide a balance between them by the provisions of the Competition Act, 2002. Under Sec 3 (1) of the Competition Act,2002 says that an enterprise or any person shall not enter any agreement which is relating to the production, supply, distribution, storage, acquisition of goods or services which cause restriction to the fair competition practices. Restriction to sub-sec (1) of sec 3 is provided under sec 3(5)¹⁸ and according to that, a person has the right to restrict other persons from the infringement or unauthorised use of a thing for which he acquired the exclusive right by intellectual property laws. Any other provisions of sec 3 shall not restrict any right guaranteed by IP law. IPR is intercepted by abuse of dominant position¹⁹. From this, it is clear that the competition law and IPR are connected to each other even though they conflict sometimes.

Kingfisher V CCI²⁰ court decided that any disputes arising between the competition and IPR then the CCI have the power to trial to a very extent. India is at the initial stage of progress in the matter relating to competition and IPR.

Test of reasonability: Chinta man Rao V. State of Madya Pradesh²¹, Indian supreme conduct test of reasonability. In the court's opinion, due care and accuracy are the elements of reasonability. It is only done by case to case analysis. because while conducting such a test it should check the reasonability of the conditions imposed on the anticompetitive agreements.

VII. Case laws in India

Valle Perlman and others V. Godfrey Philip India limited,²² Court observed the owner of a trademark misuses his power by way of influencing or controlling it in a bad manner. The owner of the intellectual property can use it in any way, but it should be in a reasonable manner.

FICCI Multiplex Association of India V. United Producers Distribution Forum²³ the major issue raised in this case was whether copyright is restricted by the provisions of competition. Intellectual property rights are not absolute because it is granted for a limited time.

Entertainment Network limited V. super cassette Industries Ltd²⁴ Supreme court held that the patent owner cannot fix a higher price to a product for his benefit. With the application of provisions of competition law, the right holder is prevented from misuse of power guaranteed by any intellectual property law.

Shamsher Kataria V. Honda Seil cars ltd²⁵ in this case CCI observe the exemption to IPR provided under sec 3 (5) of the Competition Act,2002. Here the issue is that there is an agreement between original equipment manufacturers and original equipment suppliers and OES was restricted by the manufacturers to trade outside the market. It is considered as causing an adverse effect on the competition.

Union of India V. Cyanamide India Ltd²⁶ CCI have the power to deal the cases which are relating to a large price is fixed for the product by the owner. If it is a lifesaving drug then CCI make restriction upon such business.

Express Industry Council of India V. Jet Airways²⁷, is a petition against the airlines which increasing fuel surcharges by cartelization. It is filed before CCI and CCI appoint DG to investigate the case. DG said that there is no violation by the airlines. but, CCI conducted a real investigation and held that there is contravention to the provisions of competition law.

VIII. Balancing approach between IPR and competition law

TRIPS try to keep a harmonising approach within the sphere of IPR and competition law. Grants protection to IP holders for exploitation of the product or service. And competition intends for consumer welfare. But both legislation intends to achieve a common objective that is social welfare. There are some tools that are used for making a harmonising approach between IP laws and competition laws²⁸.

1) parallel imports

The patent owner or on the behalf of the patent owner any other person imports the intellectual property from the nation, where it is registered. Theory of exhaustion of IPR, at the moment when the person imports the patented property the right of the patent holder is depleted. If any nation applies the theory of exhaustion of IPR ensures all the residents shall have the right of parallel importation in that particular state. If a state does not recognise rules, then only the right holder has the right to import the protected product.

2) compulsory licensing

Compulsory licensing is a provision used to ensure the balance between existing drugs and to promote upcoming drugs. Article 31-(a) mention that if there is a national emergency WTO member can make provisions in their domestic law for compulsory licensing of the essential products which are protected under IP laws. The time period for such compulsory licensing is continued for the authorised time. From the DOHA Declaration on TRIPS,

it is clear that the member countries can make the grounds for compulsory licensing from their own perspectives regarding compulsory licensing. Article 31 of TRIPS says about the conditions for issuing a compulsory license. It requires the following²⁹

1. If a person or company intends to get a license from a right-holder in the first instance, he should try to seek voluntary licensing. Then if it fails, he should go for compulsory licensing.

2. The patent holder has the right to collect payment from the person who gets the right after compulsory licensing.

There are some additional requirements to comply with compulsory licensing.

• Compulsory licensing does not give an exclusive right to the other person
• It's subject to judicial review if required.

Natco pharma’s case³⁰ was the prior application reported in India for compulsory licensing. The application was filed for the Anticancer drug ERLONITIB which was Roche’s patented product. And Natco also applied for compulsory licensing to IPO for SUNITIB it was an antitrust drug.

3) Control of anti-competitive practices in contractual licenses.

According to the TRIPS agreement³¹ it mentions that sometimes the licensing may cause an appreciable adverse effect on the competition. Member countries can make respective provisions for restricting the anti-competitive and abusive action arising out of the licensing.

Balancing principles recognised by the courts in a different jurisdiction

1. Arguments of legal hierarchy

In earlier times the competition and IPR possess a hierarchical approach. Due to this court would have to decide which system supersede the other. While deciding the case laws the IPR get a higher position and the possessor of IP right gets immunity. In such circumstances, the view of restricted monopoly under competition law is limited including the fixation of price also³². A balancing approach is taken that IPR holders have the immunity to use it and there is no impact of compulsory licensing and there is no restriction for monopoly practices of right holders until they misuse their powers.

2. The proprietary argument

In IPR fields when debates arisen the right holders' exclusive right to use the property is higher than any other kind of interest or right³³. The owners of IP rights and physical property rights can enjoy the absolute right to the property. But the object of protecting IP and physical property is different. IPR grants protection to creative works for promoting innovations. competition law helps to achieve the objects of IPR law and some extent which give protection to IPR laws. Under the US guideline,1995 they impose limited antitrust laws on intellectual properties. so it is clear that the creator of the work gets equal importance as that of the owner of any other physical property³⁴ and there are no specific laws to regulate IPR laws. Misappropriation of intellectual property is easy so antitrust authorities take more restrictive approaches in IPR cases. The right holders can enjoy the property freely without any interruption from any other person. However, this regulation does not mention anything about monopolization. IPR as a property does not have any solution to the problems in competition law³⁵

US and EU laws have the tendency to treat the IPR laws as different from other physical property rights³⁶.

3. Exclusive right arguments

IPR gives exclusive rights to the creator of the intellectual work. Exclusive right means the right to use, produce, reproduce, sell the goods or products and restrict others from using this without obtaining consent from the right holder³⁷. Even though IPR is not that much benefit to society it is not interfered with by competition law and right holders can enjoy free use of the right. IPR faces both gains and losses that result while enjoying the exclusive right.

Early as 1966, European courts of justice said that rule of the treaty does not affect IPR At the national level but it merely prohibits the rights holder's exclusive right³⁸. In a number of cases, ECJ was used national laws for taking decisions. Each IPR has its own ‘core’ it cannot be overwhelmed by any treaty is the unchanged rationale used in EU law. Within this core, the owner of the IP has all the right to exploit the property. The principle of IPR does not constitute any complete barrier to it. It became a disadvantage to it.

IX. Analysis of IPR and competition law in various jurisdictions

US

Sec 1 & 2 of the Sherman Act³⁹ lays down the provision which intends to regulate IP licensing in the US. This law regulates trade and monopoly without unreasonable restriction. These are considered federal matters so the federal court has the power to decide such cases.

US make provisions with an intention to harmonize the IP laws and antitrust objectives. Department of Justice and the Federal trade commission are the two authorities which are decided the conflicts betwixt IP and antitrust objectives⁴⁰.

US laws ensure the protection of IP rather than restricting it because of competition⁴¹. United States V. Griffith if section 2 of the Sherman antitrust law is violated by any competitors, then FTC have the power to exclude them. It was well decided by US supreme court⁴². Recently in Kodiak⁴³ and in the case of re Independent Service Organization⁴⁴ clear the problem of the overwhelming of IP and antitrust laws. it was held that if a person who is the right holder of IP violates the antitrust law the forum shall have the power to decide it. FTC V. Actavis was a 2013 case that dealt with the conflict between IP & competition law⁴⁵. The court considers that patent protection is restricted to competition checks. US laws are trying to improve the balance between IPR and competition law.

EUROPEAN UNION

Article 345 of TFEU gives the perfect idea that any treaties do not prevent the state from making or interfering with the national IPR laws and there is a rule that national laws should not intercept free competition⁴⁶. In TFEU article 101, regulate the competition in European countries. To harmonise the balance between IP and competition European court of justice make provisions that regulate the IPR with regard to competition. Davis & Co V. Probel⁴⁷ was the preliminary case that decided on the patent. From the view of ECJ, it is clear that the competition commission shall have the power to deal with the dispute relating to the contradictory use of dominant position by a right holder which was leads to anti-competition.

In Volvo V. Veng⁴⁸, voluntary withholding to give spare parts to independent employers was considered a misuse of a dominant position in the competitive market. In the Microsoft case,⁴⁹ the observation of the ECJ was if the exclusive right guaranteed under IP laws is misused by anyone then it is considered a misuse of dominant position and the ECJ have the right to conduct a trial on such cases.

X. Conclusion and recommendations

Harmonisation of IPR and competition law have great importance to achieve the goals that are, ensuring protection to the creator of intellectual work at the same time restricting abuse of dominant position. Competition law restricts anti-competitive practices. They are not cross their limit to interrupt by IPR laws. Meanwhile, IPR laws are giving the exclusive right to the creator of the invention in a restricted manner. In every country, the authorities give equal importance to both IPR laws and competition laws. Even though they are conflicting with each other they are intended to achieve the same goal which is to benefit society. IPR have reasonable restriction to some extent with respect to competition law. IPR authorities and competition authorities should have the coordination to achieve the goals. Permit compulsory licensing when it needs necessary. Sec 3 of the Competition Act,2002 generally speaks about prevention of the anti-competitive agreements. Any enterprises or persons shall not enter into such agreements which may cause restriction to the free and fair competition. All such agreements are considered illegal. But, as already mentioned, the competition law is not overriding the IPR until it misuses its power. So, the legislature ensures the protection of intellectual property. For that sec 3(5) is provided as an exception to the general principle under sec 3. The competition commission of India has the power to deal with the dispute between IP laws and Competition laws. Competition authorities are the proper officials for preventing misuse of dormant positions and avoiding anti-competitive agreements.

IPR rights are granted to the holder of the property, he has the exclusive right to use it in a reasonable manner for a restricted period.

IP rights are definitely for the protection of the creator of the work. If competition law encroaches on it, it may cause difficulties for the inventor. Because he used his mind, skill, time and every effort for making such an invention. If competition law interferes with IPR it affects the upcoming innovations. So the competition and IPR laws should be more careful to achieve their common objective.

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