The patent-competition interface in Asia: a regional approach?

Author: Thomas Cheng

In: Ezrachi, A (Ed.), Research handbook on international competition law, p. 494-520. Cheltenham, UK ; Northampton, Mass.: Edward Elgar, 2012

Abstract:  With the adoption of the Anti-Monopoly Law (‘AML’) in China, legislative reform in India, and increased enforcement in Japan and Korea over the last decade, Asia has emerged as an important region in global competition law. In 2008, China’s then-nascent merger control regime flexed its muscles by blocking Coca-Cola’s proposed acquisition of Huiyuan, one of the largest juice manufacturers in China. This was one of the first transactions reviewed by the Chinese authority. Also in 2008, BHP Billiton’s proposed acquisition of Rio Tinto’s shares was scuttled by opposition from China’s Ministry of Commerce (‘MOFCOM’), the country’s merger review authority and the Japan Fair Trade Commission (‘JFTC’). MOFCOM has since required remedies in a string of mergers or joint ventures involving multinational corporations such as the 2008 merger between Sanyo and Panasonic and the 2009 merger between Pfizer and Wyeth. While in other areas of law, such as human rights and corporate governance, an Asian consensus as distinct from the Western approach is often suggested, calls for an Asian approach to competition law are much less often heard. More specifically, it may be asked whether Asia requires its own regional approach to the patent–competition interface. The patent–competition interface is one of the most vexing areas of competition law. It entails difficult trade-offs between short-run consumer welfare and long-run dynamic efficiency and requires an intimate understanding of both competition law and patent law.

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