Introduction

In this chapter, I take up the following question: in formulating patent-related competition law and policy, what lessons might developing countries learn from the United States experience? This is a perilous exercise in at least two respects. First, it may seem to treat developing countries as a monolith, when in fact they are likely to vary widely, for example, with respect to their economic development potential and their legal traditions. My analysis takes heed of this probable variance; but, for purposes of discussion, I nevertheless posit a hypothetical, model developing country. Specifically, I consider the case of a developing country that is a WTO Member; that has committed to formulating a TRIPS-compliant intellectual property (IP) regime but has no substantial legal tradition in the area of intellectual property; that is interested in formulating a patent-related competition policy but has little or no experience with such laws; and that lacks any firm institutional foundation for either IP or competition regimes, and cannot devote substantial resources to establishing such institutions immediately. Although it is approximate, this model fairly accurately portrays the state of affairs in many countries routinely designated as “Least-Developed Countries” (LDCs), and most “developing” countries experience at least some of these conditions, if not all of them.

Second, to suggest that developing countries look for guidance from the patent/competition laws of developed countries may seem to reflect characteristic Western hubris. My analysis is sensitive to this problem.