The Interplay between Antitrust Law and Intellectual Property Law in South Africa: A Critical Analysis of the OECD Recommendation on Intellectual Property Rights and Competition

Stephany Torres, Senior Associate, Primerio
Joshua Eveleigh, Associate (designate), Primerio
Michael-James Currie, Partner, Primerio
Madelein Kleyn, CEO Mad K IP Consulting, Mad K IP Consulting (Pty) Ltd

The interplay between competition law and intellectual property remains the subject of much debate. Intellectual property creates monopolistic rights to protect and reward innovation and incentivise creators; whilst competition law seeks to balance these monopolistic rights by maintaining an open and competitive market. Competition and intellectual property laws, however, share similar objectives, namely improving consumer welfare and encouraging innovation across markets. Competition law and intellectual property rights regimes are governed by separate legislative instruments; separate adjudicative bodies and have different applicable policy considerations. This paper analyses the relationship between competition and intellectual property laws, with a specific focus on the Organization for Economic Cooperation and Development (“OECD”) Recommendation on intellectual property rights and competition (“Recommendation”). This paper examines the historical context, legal framework, and most importantly the practical implications of this interplay, highlighting the challenges and opportunities it presents for fostering innovation, promoting competition, and safeguarding consumer welfare. In doing so, this paper outlines notable developments emanating from leading competition agencies across the globe.

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South Africa Intellectual Property General November 2023 Vol.16, No. 65, Autumn 2023

Stephany Torres

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Stephany Torres is a senior associate at Primerio and has advised on a range of regulatory issues, including South African and African competition law including in relation to merger control, joint ventures, dawn raids, and cartel investigations, prohibited practices, corporate leniency applications, horizontal and vertical restrictive practices, abuse of dominance, and applications for exemptions and interim relief, as well as the criminal provisions under the Competition Act.

Joshua Eveleigh

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Joshua is an associate (designate) at Primerio and has represented and advised numerous clients before South Africa’s competition authorities in regard to allegations of cartel conduct, restrictive vertical practices, abuse of dominance and price discrimination and has successfully assisted in the preparation of merger filings across several sectors and jurisdictions , including: South Africa, COMESA, Zimbabwe and Morroco

Michael-James Currie

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Michael-James Currie is a Director of Primerio and co-founder of the Primerio South African practice. His regulatory and commercial law practice is pan-African and he has practiced across several countries and regional blocs. Mike has consistently been recognised as a “Best Lawyer in South Africa” for Competition Law and also serves as the “Global Law Expert for Competition Law in Nigeria.”

Madelein Kleyn

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Dr. Madelein Kleyn has more than 30 years international experience as intellectual property practitioner, patent attorney and in-house legal counsel in the petrochemical and agri industries. She is presently the Chief Legal Officer of Omnisient (Pty) Ltd a company specializing in data collaboration and anonymization . She also is the CEO and founder of Mad K IP consulting (Pty) Ltd a private company advising clients on IP matters. She is a qualified chemical engineer (BSc Chem Eng), an admitted attorney of the High Court of South Africa and a registered South African patent attorney. She holds a LLM in tax law and PhD in intellectual property law. Her technical expertise is in the area of petrochemicals, chemistry, process engineering, explosives and agriculture. Madelein’s main areas of expertise include IP Portfolio management, IP policy and strategy development and implementation. She regularly advises on corporate governance and IP risk management and specializes in drafting and advising on IP-related business transactions, including technology transfer and licensing. She has authored and presented various articles, papers and publications on IP matters internationally specifically on technology and IP licensing and commentaries on national IP related legislation. Since 2014 she is the co-editor of the textbook “International Pharmaceutical Law” and is also a co-author of the South African Chapter of this publication. She is a member of the SAIIPL (South African Institute of Intellectual Property Lawyers) and also the editor of the SAIIPL newsletter IP Briefs™. She is a member of INTA (International Trademark Association) and CCASA (Corporate Counsel Association of South Africa), ACS (American Chemical Society) and SARIMA ( Southern African Research & Innovation Management Association). She is also member of LES (License Executive Society of South Africa - past president) and a Vice President of LES International. Madelein was included in the IAM Strategy 300 – The World’s Leading IP Strategists since 2015 and featured in WTR300 World’s leading trademark professionals since 2016.

Mad K IP Consulting (Pty) Ltd

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Mad K IP Consulting (Pty) Ltd is a private IP consulting business that assists clients with IP Strategy development and assisting with commercialisation of IP. www.mad-ip.com

Primerio

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Primerio was formed as the first Pan-African boutique competition law firm in 2015, consisting of a team of experienced competition law practitioners, former regulators and economists, offering first-class competition and antitrust counsel to clients across the African continent. The services offered by the Primerio team have developed into several core competencies in addition to the antitrust practice. These include white collar crime, complex commercial litigation, corporate and project development expertise, and a growing regulatory and foreign direct investment department.

South Africa Intellectual Property General November 2023 Vol.16, No. 65, Autumn 2023
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