The Case of an Awkward Interface - Patents v Competition 21 University of New South Wales Law Journal 1998

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21 U.N.S.W.L.J. 757 (1998)
The Case of an Awkward Interface - Patents v Competition

handle is hein.journals/swales21 and id is 777 raw text is: 1998

UNSW Law Journal

THE CASE OF AN AWKWARD INTERFACE -
PATENTS V COMPETITION
JUSTIN G FUNG
ABSTRACT
This paper examines the rationales behind Australian patent and competition
laws and explores the relative efficacy of each in achieving its respective aims.
The interface between patent and competition laws is then analysed and a
resolution of any conflict or inconsistency between the two is proposed. Finally,
the proposed resolution is applied to specific provisions of the Patents Act and
Trade Practices Act.
I. INTRODUCTION
The interface between patent and competition or antitrust law' presents many
interesting questions. The ultimate object of each is to maximise societal
* B Comm (Hons) (Melb), final year LLB (Hons) (Melb) student; Research Fellow, Department of
Economics, The University of Melbourne; Senior Research Assistant, Centre for International Finance,
Melbourne Business School; Assistant Editor, Melbourne University Law Review. I would like to thank
Megan Richardson for her helpful comments.
I In this paper, the term competition law is used to denote laws primarily directed at the promotion of
competition through the proscription of anti-competitive conduct - essentially Pt IV of the Trade
Practices Act 1974 (Cth). The term antitrust law is used as an alternative, although primarily with
reference to the United States' legal regime.
2 See, for example, C Kaysen and D Turner, Antitrust Policy, Harvard University Press (1965) p 160:
[tlhe correct location of the disputed boundary between ... patents law and ... antitrust law is a difficult
and important problem, cited in PG McGonigal, Patents and Competition Policy: Economic
Implications in Industrial Property Advisory Committee (IPAC), The Economic Implications of
Patents in Australia, Australian Patent Office (1981) 141 at 141.