Staff Working Paper ERSD-2018-02 6 March 2018 ______________________________________________________________________ World Trade Organization Economic Research and Statistics Division ______________________________________________________________________ COMPETITION AGENCY GUIDELINES AND POLICY INITIATIVES REGARDING THE APPLICATION OF COMPETITION LAW VIS-À-VIS INTELLECTUAL PROPERTY: AN ANALYSIS OF JURISDICTIONAL APPROACHES AND EMERGING DIRECTIONS Robert D. Anderson, Jianning Chen, Anna Caroline Müller, Daria Novozhilkina, Philippe Pelletier, Nivedita Sen and Nadezhda Sporysheva1 Manuscript date: 4 March 2018 1 Anderson: Counsellor and Team Leader for Government Procurement and Competition Policy, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat; Honorary Professor, School of Law, University of Nottingham, UK; External Faculty Member, World Trade Institute, University of Bern, Switzerland; and External Faculty Member, International Economic Law and Policy (IELPO) Program, Faculty of Law, University of Barcelona. Chen: Legal Affairs Officer, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat. Müller: Legal Affairs Officer, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat. Novozhilkina: Attorney at Law (Russia); Fellow (WIPO). Pelletier: Legal Affairs Officer, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat. Sen: Doctoral Candidate in International Law at the Graduate Institute of International and Development Studies, Geneva. Sporysheva: Legal/Economic Analyst, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat. Antonella Salgueiro provided valuable assistance in checking and finalizing the paper. The detailed and helpful suggestions of Antony Taubman are gratefully acknowledged, as are helpful discussions with Bill Kovacic, Alberto Heimler and Eleanor Fox. Any views expressed are the personal responsibility of the authors and should not be attributed to the WTO Secretariat or to any other organizations with which they are affiliated. Prepared for publication in Robert D. Anderson, Nuno Pires De Carvalho and Antony Taubman (eds.), Competition Policy and Intellectual Property in Today's Global Economy (Cambridge University Press, World Intellectual Property Organization and World Trade Organization, forthcoming) COMPETITION AGENCY GUIDELINES AND POLICY INITIATIVES REGARDING THE APPLICATION OF COMPETITION LAW VIS-À-VIS INTELLECTUAL PROPERTY: AN ANALYSIS OF JURISDICTIONAL APPROACHES AND EMERGING DIRECTIONS Robert D. Anderson, Jianning Chen, Anna Caroline Müller, Daria Novozhilkina, Philippe Pelletier, Nivedita Sen and Nadezhda Sporysheva1 Abstract Competition agency guidelines, policy statements and related advocacy are an important vehicle for policy expression and the guidance of firms across the full spectrum of anti-competitive practices and market conduct. The role of guidelines and policy statements has, arguably, been particularly important in the context of the competition policy treatment of intellectual property rights, given the complexity of this area, the importance that competition agencies attach to it, and its importance for innovation, technology transfer and economic growth. As such, this important normative material also provides a useful empirical foundation for mapping relevant trends and the evolution of policy thinking over time and across jurisdictions. In this light, the paper examines the competition agency guidelines, policy statements and related initiatives regarding intellectual property (IP) of the following three sets of jurisdictions: (i) the United States, Canada, the European Union and Australia; (ii) Japan and Korea; and (iii) the BRICS economies (Brazil, China, India, Russia, and South Africa). It focuses, to the extent possible, on a common set of issues addressed in one way or another in the majority of these jurisdictions, comprising: (i) the treatment of licensing practices, including refusals to license; (ii) anti-competitive patent settlements; (iii) issues concerning standard-essential patents (SEPs); (iv) the conduct of patent assertion entities (PAEs); and (v) competition advocacy activities focused on the IP system. Additionally, while the primary focus of the paper is on competition agency guidelines, policy statements and advocacy activities relating to IP, reference is also made to enforcement and case developments where they are helpful in illustrating relevant approaches and trends. Overall, the analysis suggests, firstly, that, in contrast to the situation prevailing twenty or thirty years ago, interest in the systematic application of competition law vis-à-vis IP certainly is no longer a preoccupation of only a few traditional developed jurisdictions. Secondly, we find evidence of significant cross-jurisdictional learning processes and partial policy convergence across the jurisdictions surveyed. Thirdly, the analysis also reveals the continuing potential for coordination failures in regard to the approaches taken by national authorities in this area, for example where jurisdictions take different approaches to specific practices such as refusals to license and/or give differing weights to industrial policy as opposed to consumer welfare or other objectives in their policy applications. Key words: competition agency guidelines, intellectual property, antitrust, innovation, licensing agreements, refusal to license, anti-competitive patent settlements, standard-essential patents (SEPs), patent assertion entities (PAEs), competition advocacy. JEL classifications: K21, L4, L41, L43, O3, O34 1 Anderson: Counsellor and Team Leader for Government Procurement and Competition Policy, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat; Honorary Professor, School of Law, University of Nottingham, UK; External Faculty Member, World Trade Institute, University of Bern, Switzerland; and External Faculty Member, International Economic Law and Policy (IELPO) Program, Faculty of Law, University of Barcelona. Chen: Legal Affairs Officer, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat. Müller: Legal Affairs Officer, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat. Novozhilkina: Attorney at Law (Russia); Fellow (WIPO). Pelletier: Legal Affairs Officer, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat. Sen: Doctoral Candidate in International Law at the Graduate Institute of International and Development Studies, Geneva. Sporysheva: Legal/Economic Analyst, Intellectual Property, Government Procurement and Competition Division, WTO Secretariat. Antonella Salgueiro provided valuable assistance in checking and finalizing the paper. The detailed and helpful suggestions of Antony Taubman are gratefully acknowledged, as are helpful discussions with Bill Kovacic, Alberto Heimler and Eleanor Fox. Any views expressed are the personal responsibility of the authors and should not be attributed to the WTO Secretariat or to any other organizations with which they are affiliated. 2 Contents I. INTRODUCTION ....................................................................................................... 4 II. TRADITIONAL DEVELOPED JURISDICTIONS: THE UNITED STATES, CANADA, THE EUROPEAN UNION AND AUSTRALIA .................................................. 7 1. The United States .................................................................................................... 7 (1) Introduction and context ............................................................................................. 7 (2) Scope of the current US Guidelines ............................................................................... 8 (3) Doctrinal content of the US Guidelines .......................................................................... 8 (4) Other enforcement issues addressed by the US competition agencies separately from the 1995 and 2017 Licensing Guidelines ........................................................................10 (5) Competition advocacy regarding the IP system .............................................................12 2. Canada .................................................................................................................. 12 (1) Introduction and context ............................................................................................12 (2) Scope of the 2016 Canadian IPEGs ..............................................................................13 (3) Doctrinal content of the Canadian Guidelines ................................................................13 (4) Competition advocacy regarding the IP system .............................................................16 3. The European Union .............................................................................................. 17 (1) Introduction and context ............................................................................................17 (2) Scope of relevant instruments ....................................................................................19 (3) Doctrinal content of the EU Regulation and Guidelines ...................................................19 (4) Issues addressed by the EC separately from the TTBER and the Guidelines: Patent Assertion Entities ...............................................................................................................22