Speaking Notes for Sheridan Scott Commissioner of Competition

Competition Bureau

Competition/IP Symposium
Ottawa, Ontario

March 29-30, 2007

(Check against delivery)

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It is my great pleasure and honour to welcome everyone to this symposium on the interface between competition and intellectual property (IP). I'm sure many of you know about, and may have actually participated in, a similar event that happened over 10 years ago. At that time, the Competition Bureau, in co-operation with Canadian Intellectual Property Office (CIPO) and the Micro-economic Policy Analysis Branch of Industry Canada, carried out a research exercise to look at the role of competition policy and intellectual property rights in promoting an efficient and innovative economy. One of the main preoccupations in this area was finding the right balance between creating incentives for innovation and the encouragement of vigorous competition in the market place. The papers that were prepared as part of that conference and a summary of the roundtable discussions that occurred were subsequently published as a book in the Industry Canada Research Series. That volume, in addition to the conference discussion, played a role in shaping the development of the Bureau's Intellectual Property Enforcement Guidelines (IPEGs) that spell out the Bureau's enforcement policy with respect to matters involving IP. These guidelines were published in September 2000.

A lot has happened in the area of competition policy and IP since the last symposium. The role of IP in standard setting organizations and patent settlement arrangements; the prevalence of authorized generics; and the growing concerns over the overlap and quality of IP rights and their effects on innovation are just some of the issues that have became more prevalent over the last decade or so. As well, some standard questions concerning IP and competition policy have lingered: Such as, what is the proper enforcement policy with respect to tying arrangements involving IP ? What circumstances warrant the issuance of a compulsory license? Furthermore, rapid advancements in technology such as digitisation have raised questions as to whether customary methods of licensing and distributing IP remain the most efficient mechanisms to disseminate IP and encourage its creation.

Jurisdictions around the world have continued to focus attention on the interface between intellectual property and competition policy. In 2002, the US Federal Trade Commission (FTC) and the Department of Justice held a series of public consultations on this topic and have published a major study of the results. The European Union published its new technology transfer block exemption in May 2004 that updated its 1996 policy. The OECD has held several roundtables on the subject. Two recent ones include an examination in June 2004 of IP and competition policy with a focus on the biotechnology industry and in October 2006 a roundtable on competition, patents and innovation. In addition to these activities, many scholarly articles and books have been published and continue to be published on the subject.

In Canada, we recently sought and were granted intervener status in the Apotex/Eli Lilly proceeding before the Federal Court of Appeal. The Bureau rarely intervenes in private court proceedings, but in this case the matter was a sufficiently important one. It involved clarifying the Bureau's enforcement approach to matters of IP and ensuring that competition principles were not ignored when it came to transactions involving IP rights.

Given all of the developments that have occurred since the last symposium on this topic, I thought it was time to facilitate another discussion in this area to re-examine and ponder the many issues and questions that the interface between IP and competition policy raises. So again, with the co-operation and support of our friends at CIPO and the policy branches of Industry Canada, we set out to host another conference to do just that.

This project originated in the summer of 2005. We began by commissioning a review paper of the major issues, and with the help of the project steering group and our editorial panel, we examined all the issues that had been identified and selected those that we felt were most important for further research. The five papers that will be presented at this symposium are the culmination of that research.

So before we begin, I want to say thank you to our editorial panel for the work they have done in guiding us to this point: David Vaver (University of Oxford), Michael Trebilcock (University of Toronto) and Marcel Boyer (Université de Montréal). Also, we look forward to the presentations of the authors and discussants. I wish to acknowledge the attendance of those from the international community: Bill Kovacic from the US FTC, David Meyer from the US Department of Justice (USDOJ) and Ernesto Estrada from the Federal Competition Commission in Mexico. We are glad that you have agreed to participate and we look forward to hearing your unique perspectives on the issues. Finally, I would like to thank the symposium organizers, who have dedicated a lot of time and effort to pulling this event together. So thank you, Alan Gunderson, Randall Hofley, Zia Proulx and Susy Barre and special thanks to Denis Wong from CIPO, and Marc Duhamel, France Chevalier and Gary Lazarus from the Strategic Policy Sector of Industry Canada.

I look forward to our discussion over the next day and a half and I hope that all of us will gain a better understanding of competition and intellectual property policy and their interaction.

Without further ado, I will turn the first session over to the chair, Professor Michael Trebilcock.

Thank you.