Trade, Competition, and Intellectual Property--TRIPS and its Antitrust Counterparts

This Article examines the interface between TRIPS' protection of intellectual property rights and antitrust law, and the extent to which TRIPS invites a counterpart agreement that would internationalize intellectual property antitrust rules. Professor Fox argues that TRIPS does not call for internationalizing antitrust law, and that even developing countries, which might find a greater need for antitrust protection against abuse of dominance after TRIPS, might be better served by developing and enforcing a national antitrust law of their own. She argues that TRIPS does, however, contemplate some limits to antitrust, lest antitrust enforcement impair protections guaranteed by TRIPS. Professor Fox proposes that this interface develop on a case-by-case basis, and that it be informed by a principle of respect for the scope of antitrust vis-a-vis intellectual property rights in developed bodies of national law. Finally, she urges dialogue to develop principles linking trade and antitrust, with trade-and-competition-restraining uses of intellectual property to be treated as a subset of broader antitrust principles.