Introduction

In general, even though the relation between intellectual property rights (IPRs) and competition policies – particularly antitrust – may be regarded as essentially compatible, it tends to present tensions and conflict zones. That is because intellectual property rights were created mainly to deter free imitation, which by definition constrains competition to some degree. Therefore, the economic function of intellectual property intrinsically restricts rights or freedoms at some level; and if such restraint is exercised in an anticompetitive way, it may be deemed an antitrust offence.

However, the actual problem arising from the application of antitrust law to the exercise of an intellectual property right does not involve an unsolvable conflict between both normative fields, but rather a systematic analysis – employing the antitrust method and the rule of reason – directed at identifying, in each specific case, the particularly abusive nature of the exercise of such a right, from the standpoint of the competition.

This chapter seeks to examine the relation between the two fields under this perspective, in which zones of tension or conflict permeate the affinities or even convergence of general goals. Such a view is largely supported by the Schumpeterian theory of competition, summarized in Section 1, which states that innovation and its resulting appropriation of profits play a leading role in the process of competition and the dynamics of the economy.