World Intellectual Property Organization

WIPO Geneva-Based Symposium on IP and Competition Policy

October 10, 2011 – WIPO headquarters, 34, chemin des Colombettes, Geneva - starting at 14:00 in the Uchtenhagen Room

The WIPO Secretariat will hold, on October 10, 2011, the fourth in a series of symposia scrutinizing current developments in the interface between intellectual property (IP) and competition policy. The Symposia are integral part of the WIPO Project on Intellectual Property and Competition Policy, which was approved by the Committee on Development and Intellectual Property (CDIP) in November 2009 in the context of the Development Agenda.

Discussion will center on the study on “Anti-Competitive Enforcement of Intellectual Property Rights (Sham Litigation)”. The study was prepared by a team of academics and researchers from the Institute of Research on Applied Economics (IPEA), of Brazil, under the coordination of Dr. Lúcia Helena Salgado, Coordinator of Regulatory and Market Studies, IPEA.

Here is an excerpt of the terms of reference of the study:

“The scope of this study will be focused on sham litigation. It should examine cases of three different sorts: (1) lawsuits between competitors with the purpose of concealing illegal collusive practices (those lawsuits generally end with a settlement which, otherwise, would be prohibited by antitrust law); (2) frivolous lawsuits initiated by dominating firms with the goal of scaring potential competitors away; and (3) frivolous lawsuits filed against governmental agencies (IP offices, sanitary authorities, etc) with the goal of gaining time and artificially maintaining IP rights in force.

In the United States a number of lawsuits launched under the Hatch-Waxman Act have been scrutinized under an antitrust approach. Even if those lawsuits are interesting and raise relevant matters, they are nevertheless confined to a very particular legal environment, and therefore should not be covered by the study in question.

The study will discuss and seek to identify elements that permit differentiating enforcement that is sham from enforcement that is legitimate. The issue of intent is perhaps a major component of the sham nature of a lawsuit, but there are other elements to take into consideration as well, such as the nature of the effects. The identification or proof of intent may also be a relevant topic to consider. Finally, it is relevant to understand how frequent shame litigation is, particularly in jurisdictions in which IP is intensively used by businesses. This might help understand whether competition authorities should follow closely the enforcement of IP rights in general or whether this matter could be left to the discretionary of courts on a case-by-case basis, as it happens today. If it is the first hypothesis that prevails, then countries might consider the possibility of adopting statutory language establishing appropriate guidelines for authorities and IP holders.”

According to the program, Mr. Geoffrey Onyeama, Deputy Director General and head of WIPO’s Development Sector, will open the Symposium. Dr. Salgado will present the study’s findings and main recommendations. Mr. Nuno Pires de Carvalho, Director of the IP and Competition Policy Division, WIPO, will be the discussant. The floor will be open to questions and comments. IPEA will submit the final version at a later stage.
The Symposium is open to diplomats, officials of intergovernmental organizations and representatives of non-governmental organizations accredited with WIPO as well as to the Geneva IP/Antitrust community. Those interested in attending are requested to complete the on-line registration form. For space reasons, attendance is limited.

 Draft Study and its annex on Sham Litigation submitted by IPEA.

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