Intellectual Property and Competition Law - IPRsonline.org

36Carlos M. Correa — Intellectual Property and Competition Law98 Bristol Myers Squibb Company s/medidas cautelares, 22 February 2007.99 Superintendencia para la Promoción y Protección de la Libre Competencia, Resolución NºSPPLC/0076-06, Caracas, 26 de Diciembre de 2006.100 In accordance with Article 9 of the Directive on Biotechnological Inventions, the protection withregard to patents on a product containing or consisting of genetic information extends “to allmaterial, save as provided in Article 5(1), in which the product is incorporated and in which thegenetic information is contained and performs its function” (emphasis added).101 Court of Appeals for the Seventh Circuit no. 82-1119.102 See also Yankee Candle Co v. Bridgewater Candle Co., 140 F. Supp. 2d (D. Mass. 2001 FerrarisMedical, Inc. v. Azimuth Corp., 2002 U.S. Dist. LEXIS 13589 (D.N.H. 2002); Hangards, Inc. v.Ethicon, 743 F.2d 1282 (9th Cir. 1984),103 203 F.3 rd 1322 (Fed. Cir. 2000), at 1327. See also Atari Games Corp. v. Nintendo of Am., 897 F. 2d1572, 1576 (Fed. Cir. 1990) (extending patent rights beyond the scope of the grant violates theantitrust laws).104 Available online at: http://www.law.cornell.edu/supct/html/91-1043.ZC1.html.105 As mentioned, Article 41 of the TRIPS Agreement requires that enforcement procedures beapplied “in such a manner as to avoid the creation of barriers to legitimate trade and to providefor safeguards against their abuse.”106 Article 31(k): “Members are not obliged to apply the conditions set forth in subparagraphs (b)and (f) where such use is permitted to remedy a practice determined after judicial or administrativeprocess to be anti-competitive. The need to correct anti-competitive practices may be takeninto account in determining the amount of remuneration in such cases. Competent authoritiesshall have the authority to refuse termination of authorization if and when the conditions whichled to such authorization are likely to recur.”107 See also Reichman and Hasenzahl, 2003.108 For instance, “a company that controlled patented processes used to produce a key chemicalintermediate for a drug effective against tuberculosis was found under Article 86 of the EuropeanCommunity treaty to be abusing its monopoly power when, after entering into production ofthe drug through its subsidiary, it subsequently refused to sell or license the intermediate to anindependent pharmaceutical manufacturer” (Scherer and Watal, 2002, p. 17).109 Article 21: “Members may determine conditions on the licensing and assignment of trademarks,it being understood that the compulsory licensing of trademarks shall not be permitted and thatthe owner of a registered trademark shall have the right to assign the trademark with or withoutthe transfer of the business to which the trademark belongs.”110 Thus, as observed by Régibeau and Rockett, “two patents on separate pain relievers are substituteeven though the chemical compounds and the physiological mechanisms involved might be verydifferent” (Régibeau and Rockett, 2004, p. 35).