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Introduction On Antitrust Law
Introduction On Antitrust Law
Introduction On Antitrust Law
Other nations have far more sophisticated antitrust laws that provide greater benefits to
the economy. The U.S. Department of Justice demonstrated a high, if not perfect,
correlation between a countrys ranking on the effectiveness of its antitrust laws and the
countrys ranking in per capita gross national product.
Senate Bill (S.B.) No. 123 was introduced by Senator Juan Ponce Enrile. The bill, if
approved, will be known as the Philippine Antitrust Act. Anticipating its eventual
approval, questions are raised on the prospective effects of antitrust legislation in the
Philippine society. An area that is expected to be affected is intellectual property
protection.
Intellectual property laws and antitrust laws have been said to intersect. While antitrust
laws prohibit monopolies, intellectual property laws confer a form of monopoly in the
enjoyment of copyrights and patent rights. S.B. No. 123 appears to bear a level of
acknowledgment of the IP and antitrust intersection. Section 4 of the bill, which renders
unlawful monopolies or attempts to monopolize, has a proviso that states, to wit:
that nothing contained in this Act shall render unlawful the right of a patent holder or a
copyright holder to enjoy the benefit of his or its patent or copyright fully registered in
the Philippines or in any foreign country with which the Philippines is a co-signatory to
any treaty or convention that protects right to an invention patent or to a copyright, as
the case may be.
Taking Section 4 alone, it seems that S.B. No. 123 would allow the full utilization of
copyright and patent as an exception to the prohibition against monopolies. However,
Section 6 of the same bill appears to have qualified Section 4 with respect to the sale of
patented goods or machinery.
The wording of Section 6 of S.B. No. 123 appears to be broad enough to cover such a
situation. This should not be the case.
The Intellectual Property Code of the Philippines secures patent rights to inventors and
it grants a monopoly over a patented invention for twenty (20) years. A valid patent
gives the public what it did not earlier have. The rationale behind the law in granting the
right to exclude others is to reward the inventor for his ingenuity, by allowing him to
exclusively reap the value that his invention will fetch in the market. The right to exclude
others that results from the enjoyment of patent right does not run counter to public
interest, because the public will ultimately benefit from patented goods or inventions.
However, R.A. 8293 already has a built-in remedy for such abuses in the form of
compulsory licensing , which gives the State the power to interfere with the patent
holders exercise of rights over his invention. Basically, compulsory licensing obliges the
patent owner to allow other manufacturers to produce his patented product or invention
in case it is determined that the manner of exploitation by the patent owner or his
licensee is anti-competitive. Hence, compulsory licensing is calculated to solve an
abuse of monopoly over a patented invention.
It must also be noted that R.A. 8293 provides a term of 20 years for patent protection.
Therefore, the public is only subjected to the exclusivity created by patent for a limited
period of time. When the term of patent lapses, the exclusivity disappears and all the
relevant information to make the good or invention passes to the public domain.
Much has been said about patent, but there are also some issues on the effects of S.B.
No. 123 on copyright as well. As stated above, Section 6 limits the full enjoyment of
patent right that Section 4 acknowledges. However, Section 4 mentions both patent and
copyright. If Section 6 lays down a restriction on the trade of patented goods, then there
exists a question on why it does not impose the same restriction on copyrighted works.
The section leaves the full enjoyment of copyright as it is.
Copyright, like patent, gives its holder exclusive rights over the subject work. An undue
discrimination between patent and copyright appears to have been made, considering
that the abuse of rights conferred by copyright also raises antitrust issues. To illustrate,
computer software is classified under copyrightable works. Consequently, allegations of
software copyright abuse results into an invocation of antitrust laws.
In the United States, Microsoft confronts antitrust lawsuits wherein the company is
accused of having levered its legal copyright in the Windows software to restrain trade
in a variety of compatible products designed to run on the Windows platform. S.B. No.
123 seems to have overlooked the fact that copyright and antitrust laws also intersect.
Such disregard is quite curious, considering that the Intellectual Property Code does not
provide compulsory licensing in copyright, unlike in patent law.
Paradoxically, S.B. No. 123 could have satisfied such need, and thereby strengthened
its purpose, if it focused on placing restrictions on copyright instead of patent.
The interplay between antitrust laws and intellectual property is an extensive subject
that gave rise to a bounty of literature in other countries. The possible enactment of S.B.
No. 123 raises several questions on how antitrust legislation will change the local
setting. The exercise of intellectual property rights, specifically copyright and patent, will
be affected if S.B. No. 123 will be turned into law. However, if the Philippine society can
take a lesson from other nations that have more experience with antitrust legislation,
hopefully, such lesson will be that antitrust and intellectual property laws are not
adversaries; they complement each other.
The free competition that antitrust laws aim to bring about encourages people to come
up with fresh ideas, products and inventions that will win big in the market and that will
serve the society better. Copyright and patent likewise foster the human genius in the
hopes that public welfare will be served by the fruits of ingenuity.
Antitrust and intellectual property laws are both aimed at encouraging innovation,
industry and competition. From such a perspective, if S.B. No. 123 is enacted, the test
will be on how the Philippine Antitrust Act complements the Intellectual Property Code.
Hopefully, the final draft of the bill meets the heavy expectations laid upon it.