“Restrictive Conditions” in patent law and the competition law interface

• Author: Jessica C. Lai,Vikas Kathuria
• Published date: 01 July 2018
• Date: 01 July 2018
• DOI: http://doi.org/10.1111/jwip.12105

DOI: 10.1111/jwip.12105

ORIGINAL ARTICLE

“Restrictive Conditions”in patent law and the

competition law interface

Jessica C. Lai

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Vikas Kathuria

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School of Accounting and Commercial

Law, Victoria University of Wellington,

Wellington, New Zealand

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Faculty of Law, Bennett University,

Pradesh, India

Correspondence

Dr Jessica C. Lai, Senior Lecturer of

Commercial Law at Victoria University of

Wellington, New Zealand. She is also

General Secretary of the Asian-Pacific

Copyright Association, PO Box 600

Wellington 6140, New Zealand.

Email: jessica.lai@vuw.ac.nz

This article examines a little discussed section of the New

Zealand Patents Act 1953 (s 66), which dealt with “restrictive

conditions.”It discusses the repeal of the section and the

resultant situation in New Zealand, particularly vis-à-vis the

competition law regime and its exemptions for certain

behavior regarding intellectual property. A comparison of

the patent-law and competition-law interface is made with

respect to the UK, Australia, and India. The article finds that

New Zealand's statutory regime potentially offer the most

patent friendly environment when it comes to a patentee's

ability to extend his/her reach beyond the scope of patent

rights. At the same time, policy- and law-makers have largely

ignored the relationship between patent law and competi-

tion law, which may prove to be counterproductive against

New Zealand's desire to be innovative and—connected to

this—unfavorable for New Zealand consumers.

KEYWORDS

competition, New Zealand, patents, restrictive conditions

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INTRODUCTION

The relationship between competition law and patent law is by no means an easy one. While the potential anti-

competitive nature of patents is ever-increasingly disputed on the international stage, this has not been the case in

New Zealand, as of yet. Not being a hub for technological development or implementation (like the US, EU, India,

China, Japan, and South Korea), global battles over patents, licensing and the implementation of standardized

technologies have not played out in New Zealand.

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Be that as it may, New Zealand has had (and continues to have)

legislative provisions that deal with the competition law and patent law interface. These are predominantly in the

© 2018 The Authors. The Journal of World Intellectual Property © 2018 John Wiley & Sons Ltd

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wileyonlinelibrary.com/journal/jwip J World Intellect Prop. 2018;21:256–268.