Intellectual Property and Competition Policy
WIPO's work on intellectual property (IP) and competition policy began in 2010 with a thematic project under the Development Agenda. This site provides information on the interface between IP and competition policy, including studies on how intangible business assets (such as patents and trademarks) can be used more efficiently by applying competition law norms and principles. It also informs about WIPO’s work to facilitate dialogue and promote the exchange of experiences on this interface.
IP is inherently pro-competitive because it ensures the protection of differentiating intangible business assets. These assets enable consumers to make choices betwee competing entrepreneurs, and the goods and services they sell.
Without IP, less efficient manufacturers and service providers would try to lure clients by copying the goods and services of more efficient competitors. The latter would lose any incentive to improve or to offer new products and services. Society would lose. However, IP only performs that crucial role of ensuring competition when it protects genuine differences.
Relations between IP and competition policy can be categorized into three sets of issues:
- Too much IP: When IP is unduly extended so as to grant exclusivity over non-differentiating features (such as patents for technical features that do not qualify as inventions and trademarks for common, non-distinctive words), it is anti-competitive.
- Too little IP: When efficient enforcement means are not available or when genuinely differentiating features cannot be protected, imitation follows.
- IP in the right dosage (neither too much nor too little) is inherently pro-competitive but sometimes it can impact on the consumer’s right to free choice. This happens when IP rights are abused, or used in a way contrary to the objectives of the Law. Even IP in the right dosage can sometimes make it difficult, impossible or inconvenient for competitors to seek alternative ways of attracting consumers. This is the case, for example, when patented technologies become industrial standards, or when the obtaining of test data implies the risk to the health and well-being of humans and animals. In the first case, it is impossible for competitors to create alternative, different technologies. In the second case, duplicating tests to obtain the same data causes unnecessary and socially unjustified harm.