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

Madelein Kleyn, CEO Mad K IP Consulting, Mad K IP Consulting (Pty) Ltd, South Africa

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.

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 is a private IP consulting business that assists clients with IP Strategy development and assisting with commercialisation of IP. www.mad-ip.com