Competition Analyses of Licensing Agreements - Considerations for Developing Countries under TRIPS
International Centre for Trade and Sustainable Development (ICTSD)
The paper traces the approach used by Japan and its evolution from a net technology importer to exporter, as well as the changes in its industrial development and technology transfer policies. In order to provide the proper context to the changes experienced in Japan the analysis first traces the negotiation history of the relevant TRIPS provisions (Articles 8.2 and 40.2), which establish global principles for addressing this interface. The paper raises important questions as to when it might be appropriate to apply per se rules as opposed to rule of reason analysis for considerations of fairness, and when it might be appropriate to shift from the former to the latter. In so doing, the paper is designed to shed light on the considerations weighed in establishing and changing the country’s approach to the control of certain licensing practices.