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Alysha Manji-Knight EDITOR Alysha Manji-Knight CONTRIBUTORS . ARGENTINA: Agustin Waisman, Beccar Varela . AUSTRALIA: Sarah Moritz and Katherine Giles, MinterEllison . BRAZIL: Kei Kobayashi and Carlos Eduardo Eliziário de Lima, Dannermann Siemsen Advogados . CANADA: Alysha Manji-Knight and Badar Yasin, Davies Ward Phillips & Vineberg LLP . CHINA: He Jing and Hui Cao, AnJie Law Firm . EUROPEAN UNION: Géraldine Babin, Cleary Gottlieb Steen & Hamilton LLP . GERMANY: Thomas G. Funke, Osborne Clarke LLP . INDIA: Ravisekhar Nair, Economics Laws Practice . ISRAEL: Mattan Meridor and Joey Lightstone, Agmon & Co. Rosenberg Hacohen & Co. ITALY: Marco Lo Bue, BonelliErede . SOUTH AFRICA: Millard Arnold, Mpumelelo Tshabalala and Richard Bryce, Bowmans Law . SOUTH KOREA: Cecil Saehoon Chung and Kyoung Young Kim, Yulchon LLC . TAIWAN: Andy C. M. Chen, Chung Yuan Christian University, Taiwan . UNITED KINGDOM: Pat Treacy, Sophie Lawrance and Aimee Bookes, Bristows LLP . UNITED STATES: Suzanne Munck, Frances Marshall, Jennifer Dixton and Anupama Sawkar United States Federal Trade Commission Message from the Editor Alysha Manji-Knight The tension at the intersection of antitrust and intellectual property (“IP”) law has increasingly been making headlines around the world in recent years. Fundamentally, IP regulation is designed to promote competition by creating incentives for innovation. IP gives the holder a return on investment by granting the exclusive use of the IP within a defined scope and timeframe, including negotiating the terms of licenses to third parties. Antitrust laws do not prevent the holder from exercising its rights within this framework, but protect competition by prohibiting conduct that allows the holder to unilaterally extend the market power conveyed by this IP beyond its lawful scope or to facilitate unlawful coordination with competitors. To this end, the same general rules apply to IP as to any property. While antitrust and IP regimes are generally complementary, the line is not always clearly defined. This has increasingly important implications in key enforcement areas where decisionmakers must balance incentives for investment and innovation against risks of foreclosure and coordination. In particular, these issues may arise: (i) when IP rights give rise to market power or a dominant position that may trigger different standards of conduct for competitors; (ii) in circumstances where there is the potential for holdup where a patent may be included as an essential element of a new industry standard in exchange for a commitment to license to competitors on fair, reasonable, and non-discriminatory (“FRAND”) terms; and (iii) when efforts to protect or extend the validity of a patent can be unlawful or facilitate coordination with competitors. These issues are increasingly in the public spotlight with high profile matters involving standard setting in the technology sector and scrutiny of pricing in the pharmaceutical sector. Decisionmakers around the world have taken different approaches to developing effective rules governing conduct at the intersection of antitrust and IP regulation. Even jurisdictions with sophisticated IP regulation and extensive antitrust precedent must constantly adapt as markets and applications evolve. In the process, some create clear regulatory rules and presumptions in the antitrust assessment, while others apply more flexible effects-based standards. Similarly, some jurisdictions (particularly those with a history of price regulation) may take a more active role in directly resolving disputes, while others may rely more heavily on indirectly promoting the market conditions that foster broader competition. These differences are enhanced by economic imbalances, particularly for countries that are more reliant on licensing technologies developed in jurisdictions with stronger IP regulation. In many cases, application of these rules can therefore have significant extraterritorial effect in high stakes environments. Nuances in the enforcement approach across different regimes present a particular challenge for companies competing globally in IP-reliant industries. We hope that this review will be a useful resource for practitioners navigating this diverse and dynamic environment. While there is unlikely to ever be a single solution that applies neatly to all jurisdictions, we further hope this initiative can help to advance the dialogue on current practice and foster more international convergence. Message from the Committee Co-Chairs Lisl Dunlop, Ethan Litwin and Elizabeth Wang Welcome to our second issue of the International Antitrust Law Committee’s annual newsletter, Perspectives on International Antitrust. Thanks to Alysha Manji-Knight, the editor of this edition, for her incredibly hard work in putting the issue together; our authors for their wonderful contributions; Committee vice-chairs who served on the steering group for this issue; and finally members of the International Antitrust Law Committee who answered the call to assist with editing and finalizing this issue for publication. The International Antitrust Law Committee serves as an international network of antitrust practitioners and government officials, and provides an unparalleled opportunity to learn about current thinking on competition enforcement around the world. One of our Committee’s principal functions is to keep our members informed about significant international competition law developments. We do this through regular reports on our Committee listserve, through our “Hot Topics” bulletins, our contribution to the Section of International Law’s Year In Review, annual publication of a detailed long-form Year In Review, and now through Perspectives. The goal of Perspectives is to provide a forum for discussion and in-depth analysis of global issues and developments in competition law. This issue surveys the differing treatment of the interface between competition law and intellectual property law in fifteen jurisdictions, from the Americas, Asia and Europe. The interface between antitrust and IP has been an ongoing hot topic for the international antitrust community, as evidenced by the many conferences, regulator guidelines and comments submitted on regulatory proposals by the American Bar Association. In this issue of Perspectives, our contributors each provide background on the key antitrust and intellectual property laws in their jurisdictions and highlight the key cases and issues that are the focus of debate. In addition, for the United States, attorneys from the U.S. Federal Trade Commission have contributed an analysis of the updated Antitrust Guidelines for the Licensing of Intellectual Property issued by the FTC and the United States Department of Justice Antitrust Division in 2017. We hope that this issue will be a useful resource for our members and the broader antitrust community – and that you enjoy reading it! We would love to hear your feedback on the issue, as well as any ideas for future publications. Table of Contents Argentina ...................................................................................................... 1 Australia ....................................................................................................... 8 Brazil .......................................................................................................... 35 Canada ....................................................................................................... 41 China ......................................................................................................... 58 European Union ........................................................................................... 72 Germany ..................................................................................................... 92 India ........................................................................................................ 104 Israel ....................................................................................................... 127 Italy ......................................................................................................... 141 South Africa .............................................................................................. 153 South Korea .............................................................................................. 175 Taiwan ..................................................................................................... 188 United Kingdom ......................................................................................... 207 Argentina Agustín Waisman1 Background The intersection between intellectual property (IP) law and competition law in Argentina is interesting in that, although there are limited to no judicial or administrative precedents in this area nor guidelines from Argentina’s competition agency, this area is still regulated. In fact, the scope of regulation is broader than might be expected and is indeed broader than regulation in many other countries. In Argentina, the majority of IP issues relate to competition and as such one would expect that such IP issues would be regulated by Argentina’s competition law. However, this is not the case. Instead, IP issues, including IP competition issues are regulated under Argentina’s IP laws. There is a lot of uncertainty surrounding the IP regulatory regime in Argentina at this time. Further, the competition related provisions included under the IP legislation have not been applied by either the competition
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