Nuno Pires de Carvalho - The TRIPS Regime of Antitrust and Undisclosed Information

Nuno Pires de Carvalho

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For Ana

forever

For Andr, Hugo, and Carolina

For Theo, Felipe, Pedro, and Sofia

Article 8

Section 7: Protection of Undisclosed Information

of the TRIPS Agreement: a sui generis mechanism

(ii) Non-commercial use

Like Lemony Snicket, perhaps I should initiate this book by warning readers of the dangers hidden in it. Following his example, I might consider the convenience of discouraging some readers not to open this book or, if they already have, to recommend that they close it immediately.

The reason is that some readers might acquire this book in search of an extensive and organized description of the basic elements of antitrust and trade secret laws. But they will not find them here. Actually, this book is not about antitrust law. This book is about antitrust from a TRIPS perspective. The treatment of antitrust law is, therefore, much narrower and more focused than one might expect from a treatise on that matter. This book is not about trade secret law either. Again, trade secrets are scrutinized under the perspective of TRIPS negotiators, not of unfair competition scholars. An exception was made as regards test data. This is a new field of industrial property protection, and the ambiguity of as well as the absence of harmonization in its implementation by WTO Members call for a more detailed analysis of its legal implications.

This book covers two areas that give rise to many misunderstandings and, therefore, a significant portion of it is dedicated to identifying those misunderstandings and correcting them. Lemony Snicket would find here a powerful opportunity to again invite some readers to close this book. It is particularly striking that this book reveals that TRIPS negotiators, representing both developed and developing countries, dedicated much effort and time to discuss antitrust-related concerns and in the end adopted provisions that do not have much practical impact. In a sharp contrast, developing countries ignored the proposals by a very restricted , it is ironic that, if developing countries may implement protection of test data in a relatively flexible manner so as to facilitate the early entry of pharmaceuticals in their national markets, this is due to the negotiating position of the European Communities.

Like the two previous books in this series of The TRIPS Regime, this third installment is also particularly interested in the implementation of TRIPS obligations. My professional duties in the WIPO Secretariat being those of giving advice to WIPO Members States on the use of the flexibilities under international agreements in the area of industrial property for pursuing their public policies, my major concern is to look for ways and means that make TRIPS and Paris Convention provisions more user-friendly. Sometimes that may seem a difficult task, not only because of the natural complexity of industrial property-related TRIPS provisions, but also because of the constraints that some commitments accepted by developing countries put on their ability to choose between different options.

Given the ambiguity of , it can be affirmed with a great deal of certainty that protection of test data is still evolving. Recent developments in bilateral agreements indicate that the law of test data is gradually emerging and separating from trade secret law, in a trend that goes in the direction of a quasi proprietary regime (or a quasi-patent system). If countries keen to promote the generics industry will be able to prevent that from happening is something that only time will tell.

A preliminary editorial note is in order: I preferred to use the word antitrust in the title (and throughout the book) instead of the term competition law for the simple reason that there is a widespread confusion that competition law and unfair competition are synonymous expressions.

As a matter of course, all views expressed in this book are the authors and are not necessarily shared by WIPO or its Member States.

Baudelaire orphans (but, apparently, they may be not orphans after all). However, my opinion is that some sense of magnanimity and goodness lies deep in Lemony Snickets heart. In fact, throughout the 13 books he has saved Violet Baudelaire, a notorious inventor, from suffering the most outrageous infamy that Count Olaf could cause to her: misappropriating her inventions. No. Throughout the 13 books of the series, never has Count Olaf dared to file with the United States Patent and Trademark Office, on his own behalf, a patent application for an invention made by Violet Baudelaire.

IN.1.The protection and enforcement of intellectual protection promote competition. This assertion may sound strange to most readers, yet procompetitiveness lies in the core of all branches of intellectual property. Unfortunately, the relationship between intellectual property and antitrust law (or competition law) has been the subject of a vastly generalized misunderstanding, which has prevented not only the public at large but also several eminent scholars from perceiving the usefulness and efficiency of intellectual property as an instrument of creation and distribution of wealth.

that policy makers, influenced by those scholars, as well as by social pressure, fail to use intellectual property in a correct manner, thus missing the opportunity to benefit from the advantages provided by such a legal tool. Indeed, intellectual property is a legal tool with an intrinsic economic dimension, and that is perhaps the factor that generates much confusion: economists write about intellectual property without understanding its essentially legal nature; and lawyers write about intellectual property without mastering a few basic notions of microeconomics. And the fact is that policy makers in both developed and developing countries have approached intellectual property without a clear vision of either of its two dimensions.

IN.3.The next pages will be dedicated to explaining the procompetitive role of intellectual property (and of industrial property in particular, since this book does not deal with copyright or related rights). For that purpose, I will start by explaining the very basic notion of intellectual property something that might seem very obvious but, as I will show, is very widely ignored or misunderstood even by those who have the functional duty to know about it. I will also describe the components of intellectual property. At that point, I will turn my attention to industrial property and very briefly describe its economic nature. Once the legal structure and the economic nature of intellectual property have been clarified, its intrinsically procompetitive nature will become a matter of course.