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Diversified FRAND Enforcement and TRIPS Integrity

  • WENWEI GUAN (a1)
Abstract
Abstract

As an integral part of the WTO trading regime and in line with the international trend of antitrust control, TRIPS harmonized intellectual property protection with competition in mind. However, diverse national FRAND enforcement practices that take either a contractual or an antitrust approach challenge TRIPS integrity. While personal property recognition for SEPs lends constitutional support to the contractual approach to FRAND enforcement, private property's in-built limitation warrants a balance with the antitrust approach for needs from others. A critical examination of the TRIPS conclusion and the analytical structure of TRIPS provisions reveal that TRIPS obligation against anticompetitive practices is imperative. The imbalance of harmonized TRIPS with un-harmonized FRAND practices reflects TRIPS birth defect and challenges TRIPS integrity. To improve balance of rights and obligations in international trade and to ensure innovation and technology dissemination that is conducive to social and economic welfare, the paper calls for a contract–antitrust balanced approach to FRAND enforcement and the resumption of WTO's competition negotiations.

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Corresponding author
*Email: w.guan@cityu.edu.hk.
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This research was partially supported by a Strategic Research Grant from the City University of Hong Kong (Project No.: 7004790). The author would like to thank Editor Prof. L. Alan Winters of the World Trade Review, an anonymous member of the Editorial Board, and two anonymous reviewers for their extensive and constructive comments on the earlier drafts of the paper. The author is very grateful for the support.

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World Trade Review
  • ISSN: 1474-7456
  • EISSN: 1475-3138
  • URL: /core/journals/world-trade-review
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