Limiting intellectual property : the competition interface

Abstract

This is a study of legal limits of the exercise of intellectual property, with emphasis on chip designs. In Part One, the focus is on the economics of innovation dynamics and the nature of the social bargain underlying intellectual property. It analyses the function of intellectual property and the structure of protection of chip designs under the US chip law, the IPIC Treaty and the Agreement on TRIPS. It suggests that while protection of intellectual property is designed to promote technical innovation and enhance competition in the public favour, the innovation process is carried out in conditions of increasingly imperfect competition. On these grounds, a point is made to limit the exercise of proprietary rights in the welfare/efficiency perspective. Part Two addresses the treatment of legal limitations. An analysis is made concerning the evolution of the safeguarding provisions on which unauthorised use of copyright and patent in the British legal system relies. These safeguards, structured within the intellectual property law, have gradually been developed to also rely on a resurgent competition legislation, which has been considerably used by OECD countries to order the exercise of proprietary rights. The ability of modem competition law to induce an intellectual property order, and the features of the adjudicatory process of non-voluntary licences over UK patents are also examined. From the findings the emergence of; namely, a safeguarding policy is identified. The conceptualisation of this institutional policy, aiming at efficiency and welfare objectives related to the exercise of proprietary rights, is a central theme. It shows that safeguarding provisions intrinsic to intellectual property law is insufficient to pursue these objectives, and holds that to protect intellectual property without an effective control of anti-competitive practices is a distorting and unsustainable legal policy.