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Intellectual Property Rights



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Copyright 2009 by Northwestern University School of Law Northwestern University Law Review Colloquy Vol 103 INTELLECTUAL PROPERTY RIGHTS THE VIEW FROM COMPETITION POLICY Shubha Ghosh Three propositions inform the debate over the relationship between intellectual property rights and competition policy The first involves concerns over how the anticompetitive uses of intellectual property will increase as intellectual property rights become stronger The second is that the uses of competition norms to loosen intellectual property rights will diminish the incentives for innovation Finally there is the belief that the tension between competition policy and intellectual property rights can be reconciled by recognizing how market competition is consistent with innovation and by acknowledging the competition norms that shape the scope of intellectual property rights In this Essay I examine these three propositions and their application to the preliminary report on the pharmaceutical industry released by the European Commission on November 28 2008 1 I SCRUTINIZING THREE PROPOSITIONS The first proposition that anticompetitive uses of intellectual property will increase as intellectual property rights become stronger should not be read as an anti intellectual property comment The quantity of rhetoric that is critical of intellectual property rights is unfortunate as is the view that competition law particularly United States antitrust law is antithetical to the goals of intellectual property Nonetheless as intellectual property rights grow stronger through legislative changes and judicial interpretations the opportunity for abusing the right to exclude through licensing and other practices does increase In addition stronger intellectual property protections can lead to market concentration as firms become able to realize economies of scale and scope through the exercise of intellectual property rights Increased market concentration invites increased scrutiny from competition



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