Incorporation of competition‐related TRIPS flexibilities in the domestic law: A case study of India

Abstract

AbstractAbuse of patent rights can hit the three pillars of the competition law viz., agreements, abuse of dominant position and combination (mergers and acquisitions). In the context of the interface between competition law and patented inventions, the following acts can strike hard at the different pillars of competition law. First, the licensing agreements containing conditions, which may prevent competition, can attract the provisions of competition law to regulate agreements. Second, high prices on patented products can be treated as an abuse of dominant position. Third, refusal to license an intellectual property right may be anticompetitive under certain conditions such as refusing to license the second/dependent patent over the existing patented invention, and refusal on reasonable terms to the competitors. The TRIPS Agreement does contain flexibilities offering remedies to address the public interest aspects including the abuse of patents. This paper examines the implementation of competition law‐related flexibilities in the Indian Patents Act and the Competition Act in the context of pharmaceutical product patents. It argues that though competition law flexibilities are incorporated in both statutes, there is further scope for optimising the scope of these flexibilities.