Competition Rules in the TRIPS Agreement: The CFI's Ruling in Microsoft v. Commission and Implications for Developing Countries

Posted by D. Daniel Sokol

Tu T. Nguyen, Faculty of Law, Lund University addresses Competition Rules in the TRIPS Agreement: The CFI's Ruling in Microsoft v. Commission and Implications for Developing Countries.

ABSTRACT: The ruling of the European Court of First Instance in Microsoft v. Commission in was a pivotal judgment in the area of interaction between competition law and IPRs. It has been, and continues to be, a subject of many controversial discussions from both legal and economic perspectives not only in the EU but also all over the world. It also illustrated that the application of IPR-related competition law is a complex and controversial issue in both developed and developing countries. In this legal process, competition authorities in developing countries face with even greater and more serious problems. Developing countries, therefore, rarely use flexibilities concerning competition rules under the TRIPS Agreement of the WTO to address IPR-related anti-competitive practices in reality.

In this context, the Microsoft v. Commission ruling may be an important catalyst in the interpretation and application of competition rules in the TRIPS Agreement. Until now, Microsoft v. Commission was the first and unique judgment given by a WTO member's court that invoked the TRIPS competition rules to justify application of WTO member's competition law to IPR exercise. Hopefully, this ruling will encourage competent authorities of WTO members, particularly the ones in developing countries, and embolden them to apply national competition law to IPRs and technology transfer for the sake of customer welfare and national interests.