While intellectual property rights can provide the basis for the creation of new products and new markets, it can also be used to prevent entry of innovators. Derivative works in copyright, blocking patents, potentially confusing trademarks--each can serve as a basis for the relevant intellectual property owner to block the entry of a new firm. This lecture will examine these potentially anti-competitive uses of intellectual property from the perspectives of competition law and intellectual property law. These two perspectives will be labelled as either external or internal to intellectual property law. The analytical structure will focus on patent, copyright, and trademark. Examples from patent will include generic drug competition and the relevance of FTC v Actavis, blocking patents, and designs around. Examples from copyright will include the database/fact distinction, the idea-expression distinction, fair use, and exhaustion. Finally, examples from trademark will include trademark fair use, comparative advertising, and exhaustion. For each area of intellectual property, the lecture will identify potential anti-competitive dilemmas and the relative roles of doctrines external to IP and those internal to patent, copyright, and trademark respectively. The lecture will conclude with implications for theories and practices of IP more broadly.
About the Speakers
Shubha Ghosh is the Vilas Research Fellow and the George Young Bascom Professor of Intellectual Property and Business Law at the University of Wisconsin Law School. He holds a BA from Amherst College, a MA and PhD in economics from Michigan, and a JD from Stanford. Before entering legal education, he was a professor of economics at University of Texas at Austin, a judicial clerk on the US Court of Appeals for the Ninth Circuit for Judge John Noonan, and an associate for Baker & McKenzie in San Francisco and Palo Alto. His scholarship focuses on competition policy and intellectual property, innovation and the scope of intellectual property rights, freedom of expression and data access, and legal and economic analysis of the exhaustion doctrine. He has published articles in the many leading journals and authored several casebooks. His book Identity, Invention, and the Culture of Personalized Medicine Patenting was published by Cambridge University Press in 2012 and then as a paperback in 2013. In addition to his scholarly work, he has authored several amici brief in cases before the Unites States Supreme Court, including the Quanta and Bowman cases. In 2014-2015, he was the inaugural AAAS Law & Science Fellow at the Federal Judicial Center in Washington, D.C.
Mr Terence Seah is Senior Assistant Director of the Business and Economics Division and Head of the Mergers Advisory Unit (“MAU”) at the Competition Commission of Singapore (“CCS”). As Head of the MAU, Terence oversees several initiatives including the scanning efforts of MAU officers of prospective and completed mergers and acquisitions, which may potentially infringe the Competition Act (Cap. 50B) and which have not been notified to CCS. Terence joined CCS in 2009 shortly after graduating with a Bachelor of Social Sciences (Honours) from the National University of Singapore, majoring in Economics. Terence has also completed a Postgraduate Diploma course in EU Competition Law from King’s College London in 2013.
Irene Calboli is Lee Kong Chian Fellow, Visiting Professor, and the Deputy Director of the Applied Research Centre for Intellectual Assets and the Law in Asia (ARCIALA), School of Law, Singapore Management University. Irene started her academic career at the University of Bologna and has held visiting positions at the King’s College London, the University of California Berkeley, the University Complutense, De Paul University, and the Max-Planck-Institute for Innovation and Competition. Most recently, she was a visiting professor at the Faculty of Law of the National University of Singapore. Irene’s scholarship focuses on the intersection between intellectual property and international trade. She has extensively published on these areas in English and Italian. Her most recent publications include the edited books, TRADEMARK PROTECTION AND TERRITORIALITY CHALLENGES IN A GLOBAL ECONOMY (Edward Elgar, 2014, with E. Lee) and DIVERSITY IN INTELLECTUAL PROPERTY: IDENTITIES, INTERESTS, AND INTERSECTIONS (Cambridge University Press, 2015, with S. Ragavan).
Dr Burton Ong (DPhil / B.C.L (Oxon), LL.M (Harv), LL.B (NUS)) is an Associate Professor at the Faculty of Law of the National University of Singapore where he teaches and researches in the areas of Intellectual Property Law, Competition Law and Contract Law. He is a Director (Competition Law) at the NUS Centre for Law and Business (CLB) and Deputy Director of the Asia-Pacific Centre for Environmental Law (APCEL). He is a Fellow of the IP Academy where he has taught, examined and directed its flagship Graduate Certificate in IP programme for more than a decade. His research interests in the realm of IP are quite eclectic – including patent law and biological resources, the legal protection of well known trade marks, copyright and moral rights and, more generally, the intersection between intellectual property and competition law.