The Public Interest in Compulsory Licensing: Examining the Complementarity Between IP and Competition Law

Abstract

In his work on mandatory licensing under patent law and competition law, Prof. Ullrich observed that even if intellectual property (IP) principles and competition law principles answer different concerns, they nonetheless can work hand in hand, in a complementary manner. In particular, he observed that the meaning of the public interest as a ground for the grant of a compulsory licence under patent law could not be detached from economic or market-oriented considerations and therefore could call upon some principles of competition law for its interpretation. In this contribution, we explore how patent law, competition law, but also plant breeders’ rights law, may work in such a complementary manner. By asking three (simple) questions, we examine the role and meaning of the public interest in three different compulsory licence regimes, as well cases where, in practice, the claimed complementarity between IP and competition principles has been considered by the authorities in charge of granting such licences. In particular, we analyse two court decisions which have recently fleshed out the public interest requirement under patent and plant breeders’ rights law and which have put the concept of the public interest in relation with competition law principles.