Protection of Competition through Compulsory Licensing of Patents and its Relationship to Protection in Competition Laws: A Comparative Analytical Study

Volume 11 , Issue 2 , December 2023 , Pages 115-138

Authors

Adnan Baqi Latif 1 ; Hemn Hussein Wali 2

1 Department of Law - College of Law - University of Sulaimani, Kurdistan Region, Iraq

2 Master in Private Law; PhD student at the College of Law - University of Sulaimani, Kurdistan Region, Iraq

DOI logo 10.17656/jlps.10243

Keywords

Abstract

Patent law protects competition by providing the patent registrar the competence to grant compulsory licenses to correct anti-competitive practices nearly similar to that provided by competition law, though the practices covered and the measures taken by each differ. However, the nature of the relation between these two protections for competition -according to the premises provided- depends on its legislative regulation. The relation, accordingly, is characterized by the integration when these licenses are granted at the request of the competent competition authorities and after the application of competition law, while it may turn into a boycott relation when these licenses granted neither based on these requests nor the competition law application. This relation can also be a relation of two parallel protections when the granting of these licenses does not prevent the application of competition law in the same field and for the same cases. We conclude, that compulsory licensing is appropriate only for correcting the refusal of patent licensing that is anti-competitive, as for other practices, the application of competition law is sufficient to correct them, and for the registrar to grant a compulsory license, a prior decision from the competent competition authorities is required that proves the practice in question is anti-competitive, while the Iraqi and Kurdistan Region's competition authorities are unable to issue such a decision regarding the refusal of patent license as prohibiting it means granting it, which is not within the jurisdiction of any authority except the registrar. Hence, we demostrate our doubts about the efficiency of this mechanism in achieving its objectives under Iraqi law, which requires studying it, to recommend approperiate solutions through this research.

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  • Published at15 December 2023

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