Lawson, Charles --- "The First Steps in Remedying the Relationship between Patents and Competition" [2009] ELECD 438; in Arup, Christopher; van Caenegem, William (eds), "Intellectual Property Policy Reform" (Edward Elgar Publishing, 2009)

Book Title: Intellectual Property Policy Reform

Editor(s): Arup, Christopher; van Caenegem, William

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848441637

Section: Chapter 6

Section Title: The First Steps in Remedying the Relationship between Patents and Competition

Author(s): Lawson, Charles

Number of pages: 26

Extract:

6. The first steps in remedying the
relationship between patents and
competition
Charles Lawson

I. INTRODUCTION
Modern statutory competition laws such as the Australian Trade Practices Act
1974 (Cth) (`Trade Practices Act') evolved out of the common law, probably
because of a failure of the private right of action to sustain the broader public
interests in vibrant competition and free trade (see Donald and Haydon 1978,
pp. 2­4; Letwin 1954). Together with this evolution has been the development
of the idea that markets, and the competitive forces operating independently in
those markets, are best placed to make decisions about how societies' scarce
resources might be allocated for the benefit and desires of the majority of
consumers (see Hilmer 1993, pp. 1­6). As a cornerstone of modern market
economies like Australia, competition laws are now considered necessary to
drive innovation delivering better quality products and services to consumers
at lower prices by improving productivity and economic efficiency (being
technical or productive efficiency, allocative efficiency and dynamic effi-
ciency: see, for example, Hilmer 1993, pp. 3­5).
The rationale of government regulation in implementing competition laws
is to keep modern market economies open for competition by limiting conduct
that is detrimental to competition (Hilmer 1993, pp. 1­16). Importantly
though, these regulations should be directed to protecting the competitive
process rather than favouring particular sectors of the economy (Hilmer 1993,
p. 26). However, a tension remains in some dealings with patents under the
Patents Act 1990 (Cth) (`Patents Act') where ...