Competition and intellectual property (IP) law rely on different tools to pursue similar goals, notably the promotion of innovation, economic growth, and consumer welfare. However, because IP rights grant protection by allowing their holders to exclude or limit others from certain uses, they can create or reinforce market power, potentially incentivising rights holders to restrict access and hinder follow-on innovation.
The OECD Competition Committee has worked extensively on the interaction between competition and IP law. In particular, the OECD Recommendation on Intellectual Property Rights and Competition [OECD/LEGAL/0495] (2023[1]) outlines key principles applicable in competition enforcement cases involving IP‑related business practices and provides guidance on how to assess such cases, to guarantee the proper functioning of markets and adequate incentives to innovate.
Competition authorities worldwide have taken enforcement actions involving IP rights, including investigations into anti-competitive practices and merger reviews, seeking to mitigate the anti-competitive effects of IP-related conduct without undermining the objectives of IP protection. Competition authorities have also engaged in advocacy efforts to promote more pro-competitive IP policies and processes.
The main findings of the paper are as follows:
In Latin America and the Caribbean (LAC), the application of competition law to address IP-related conduct is relatively recent and concentrated in a few jurisdictions.
Antitrust enforcement in LAC has focused primarily on pharmaceutical patents, though other IP rights and sectors (e.g. copyrights in the audiovisual sector and patents in the information and communications technology industry) have also come under scrutiny.
IP rights have played a central role in merger control across the region, both in competition assessments and in the design of remedies, especially with regard to trademarks.
Advocacy efforts by LAC competition authorities, particularly in the pharmaceutical sector, have proven to be an effective starting point for competition authorities to engage with IP-related issues.
Co-operation between competition authorities and IP agencies can promote more pro-competitive IP regulation, as well as facilitate competition enforcement against IP-related conduct.
Co-operation between competition authorities is also crucial, given the cross-border nature of many IP rights and related business practices.
In conclusion, there remains significant scope for broader engagement on IP-related matters across the LAC region, despite the challenges posed by limited resources, other priorities, and the high level of specialised expertise required to assess such a complex and technical domain as IP law.