Patents, Antitrust, and the WTO/GATT: Using TRIPS as a Vehicle for Antitrust Harmonization
Author(s)
Marschall, Richard H.
Abstract
By their nature, intellectual property rights raise antitrust concerns because they grant owners the right to exclude others from using the “property” without permission–and possibly with anti-competitive effects. These concerns can arise with any form of intellectual property, including patents, trademarks, and copyrights. However, the need for an effective antitrust system may be most compelling in the midst of a strong patent system. A patent owner is granted the right to exclude others from making, using, importing, offering to sell or selling the patented invention, while the aim of antitrust laws is to keep this “legal monopoly” in check by preventing attempts by the patent owner to extend the monopoly beyond the permissible scope granted by the government. In the United States, patent and antitrust law are well established. Many other developed countries have similar legal structures, but the amount of protection in each field varies. Critics have argued for harmonization of intellectual property and antitrust standards in order to promote predictability for companies that deal in an international environment.
