OECD DISCUSSED LICENSING OF INTELLECTUAL PROPERTY RIGHTS

Deputy Head of FAS Andrey Tsyganov shared Russian experience of IP regulation

On 6 June 2019, in Paris, the Competition Committee of the Organization for Economic Cooperation and Development (OECD) held the Round Table on Licensing Intellectual Property Rights and Competition Law.

The key items on the agenda were the role of competition law in actions and agreements related to use of IP (intellectual property) rights, analyzing anticompetitive effects of the practice of licensing IP objects and determining convergence points and disagreements between antimonopoly regulators on these issues.

Head of FAS delegation Andrey Tsyganov shared with the OECD colleagues the experience of Russian agency on applying the antimonopoly norms to anticompetitive practices in the field of intellectual property.

“Antimonopoly policy with regard to the IP rights handling should achieve the balance in two aspects. First, stimulate development of new IP objects, particularly, new technologies, and provide access to earlier developed objects. Second, end users and producers that use this IP at the next stages of value creation should have non-discriminatory access to IP under economically reasonable conditions”, began Andrey Tsyganov.

Deputy Head of FAS explained that currently Russian antimonopoly law is not directly applicable to exercising IP exclusive rights.

He said that “it limits enforcement of the antimonopoly norms prohibiting abuse of dominance and participation in cartels and other anticompetitive agreements, to the right holders operating on the markers, which leads to market monopolization and competition restriction”. 

The speaker emphasized that the right-holders, particularly, transnational companies,  often use exemptions from Articles 10 and 11 of the Russian antimonopoly law to justify their actions in front of judicial bodies. He gave the examples of FAS cases against “Teva Pharmaceuticals” and “Google”.

Andrey Tsyganovpointed out that to solve the above problems FAS proposes to exclude IP “immunities” form the antimonopoly law. A relevant draft law is already prepared.  The speaker also explained that the norms protecting the right-holders’ interests are regulated in detail by civil law and a number of specialized acts, which means that abolishing “immunities” does not weaken the guarantees for protecting exclusive rights.

This solution will help find the balance between the required intervention of antimonopoly regulation in relations associated with protection and use of IP objects and reasonable restrictions for such interventions. It will also reduce considerably legal uncertainty for the stakeholders and enable the antimonopoly authority to make well-thought and justified decisions on the basis of applying the rule of reason, investigating each case form this complex category.   

Leading experts on IP rights, representing competition authorities and large companies, academia and legal firms took part in the discussions. Speakers included Assistant Attorney General (Antitrust Division) of the US Department of Justice, Makan Delrahim; a professor of the University of Pennsylvania, Herbert Hovenkamp; Director of IP and Competition Policy at “Qualcomm Inc.”, Koren Wong-Ervin; Partner, Chairman, Global Antitrust Group at “Clifford Chance” Law Firm, Thomas Vinje; Transamerica Professor of Business Strategy, Haas School of Business, University of California at Berkley, Carl Shapiro; as well as delegates from more than 10 countries.