PATENT POOLING AND ANTI-COMPETITIVE AGREEMENTS: A NASCENT DICHOTOMY OF IPR AND COMPETITION REGIME

Abstract

Intellectual Property Rights (hereinafter referred to as “IPR” ) are known to encourage and create a system of monopoly in the market while competition laws aim to discourage the same. The question is, do competition laws discourage monopoly per se or do they aim at regulating monopoly when it ventures beyond the permissible field, demarcated for its operation? It is important to understand that IPR and Competition law aim to achieve wealth-maximization in an economy. Therefore, it would be erroneous to say that there is a constant tussle between the two. The interface of IPR and Competition law is indeed at a nascent stage as far as India is concerned. In this paper, the primary focus is on analysing when patent pooling agreements qualify to be termed as anti-competitive agreements and further how the threshold of this qualification is determined. It provides a comparative study of the position prevalent in the United States of America and the European Union as far as patent pooling agreements and their anti-competitive effects are concerned. It also analyses the validity of conflation of §§3 and 4 of the Competition Act, 2002 for determining the anti-competitive effect of patent pooling agreements and the efficaciousness of ‘The Essential Facilities Doctrine’ as a test for qualification of a patent pooling agreement as anti-competitive under §3 of the Competition Act, 2002.