GLOBAL VS NATIONAL IN INTELLECTUAL PROPERTY RIGHTS: BUSINESS MODELS AND LAW ENFORCEMENT MODELS (ON THE EXAMPLE OF ANTITRUST ENFORCEMENT IN RUSSIA) IP and Innovations in the Globalized World Svetlana Avdasheva, Higher School of Economics

IPR protection and abuse of IPR prevention in the context of business model  What national legal system should take into account?  Internationally recognized rules  Experience of national business models development  Predictions on national competitive business development  Path dependency in the sources of IPR in a country  Industries – business models – different content of IPR – different tools to protect IPR – different challenges in the legal settings 2

Competition Law and IPR  Recently in Russia: IPR is granted ‘safe harbor’ for the provisions on collusion (art 11) and abuse of dominance (art 10)  Proposed and extensively discussed changes: to replace ‘safe harbor’ to ‘universal enforcement rules’ for the goods produced using IPR in contrast to IPR itself  Patent pools, cross-patenting and similar practices remain to be legal  Important justification: IPR is still under ‘safe harbor’ regime and there is no risk of overenforcement 3

National business models and IPR  Protection of IPR = right of successful innovator for profit  Successful business models rely mostly on vertical integration  IPR are protected within vertical integrated firms  ‘Right for profit’ as a right for extra-profit  IPRs themselves are very often held by public authorities 4

Business model and antitrust enforcement model (Russian case) (from Kurdin, 2014) 5 Inventor Producer Buyer(s) Inventor Producer Buyer(s) Exclusivity Integration Exclusivity Exclusivity, excessive price, refusal to deal…

Business model and antitrust enforcement model (Russian case) 6 Inventor Producer Buyer(s) Public authority Producer Buyer(s) Exclusivity Exclusivity, favoritism., restrictions of downstream competition Exclusivity

Implications for competition in IPR 7  Full exemption of IPR themselves from antitrust can result in underenforcement  Exclusion of ‘goods produced using IPR’ from the safe harbor can result in overenforcement  Specific Russian stories but they are telling us…  … About the need to rely not only on international experience or general  Possible solution 1: Industry-specific vs. general legal rules  Possible solution 2: Remedies instead of prohibitions

Thank you for your attention 8