Tuesday, April 9, 2013
Posted by D. Daniel Sokol
Thomas Cheng (University of Hong Kong) provides A Developmental Approach to the Patent-Antitrust Interface.
ABSTRACT: This Article proposes a set of guiding principles for approaching the patent-antitrust interface in developing countries. Based on the notion that antitrust doctrines need to be adjusted to reflect the local economic circumstances, this Article argues that any credible approach to the patent-antitrust interface in developing countries must incorporate development considerations. It proposes a set of guiding principles that takes into account a wide range of factors, including the need to provide innovation incentives, the need to facilitate domestic imitation, the need to protect domestic consumer welfare, and the need to safeguard access to basic necessities. With the support of a considerable body of theoretical and empirical economic literature, this Article challenges the widely held belief that patent protection is necessary for securing innovations. Rather, this Article argues that developing countries need to be skeptical about innovation-based justifications for restrictive patent exploitation practices, as many of them do not possess the capacity to take advantage of innovation incentives and can ill-afford to sacrifice consumer welfare. It concludes by highlighting the implicit challenge this Article poses to the drive for convergence that has dominated international antitrust in the last decade.