Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Canada Competition Bureau seeks public comment on updates to IP enforcement guidelines, (Apr 2, 2014)

By John W. Arden, J.D., LL.M.

The Canada Competition Bureau today released a proposed updated version of its Intellectual Property Enforcement Guidelines and invited public comment.

The update reflects amendments to the Competition Act that have occurred since the Guidelines were released in 2000, as well as the agency’s enforcement experience. The new version is intended to ensure consistency with other Bureau enforcement guidelines released since 2000.

According to Commissioner of Competition John Pecman, the Guidelines articulate how the Bureau approaches the interface between competition policy and IP rights, describe how the Bureau will determine whether conduct involving IP raises an issue under the Competition Act, and discuss how the Bureau distinguishes between circumstances that warrant a referral to the Attorney General under section 32 of the Act (special remedies for IP) and those that will be examined under the general provisions.

In a case in which patents, trademarks, or copyrights (1) unduly limit the production, storage or dealing in an article or commodity; (2) unduly restrain or injure trade or commerce in relations to such commodity; (3) unduly prevent or lessen the manufacture or production of such article or commodity or unreasonably enhances its price; or (4) unduly prevent or lessen competition in the production, purchase, barter of sale of such article or commodity, Section 32 authorizes the Federal Court to declare agreements or licenses void, to issue restraining orders, to direct the grant of a license under terms deemed appropriate, and to revoke or amend a patent, trademark, or copyright.

The Bureau’s general approach to the application of the Competition Act to IP is:

• The Bureau will use the general provisions of the Act to address conduct involving something more than the mere exercise of the IP right and section 32 to address conduct involving the mere exercise of the IP right and nothing more;

• The Bureau does not presume that the conduct is anti-competitive, violates the general provisions of the Competition Act, or should be remedied under section 32;

• The analytical framework used to determine the anti-competitive effects stemming from the exercise of rights to non-IP forms of property is sufficiently flexible to apply to conduct involving IP; and

• The Bureau will impose special remedies under section 32 in only rare circumstances when conduct cannot be remedied by the relevant IP statute.

Interested parties are invited to provide their views on the draft updated Guidelines, as well as to suggest other competition/IP issues that should be addressed. Comments may be provided by email, fax, or regular mail no later than June 2, 2014. They should be directed to: Economic Policy and Enforcement Branch, Competition Bureau, 50 Victoria Street, Gatineau, Quebec, K1A 0C9; fax: 819-953-2931; email: consultation.pi/ip.consultation@bc-cb.gc.ca. Responses will be posted on the Bureau’s website unless commenters specially request that they be kept confidential.

News: Antitrust