Best Practices in Competition Law and Technology Transfer
17-03-2022 / Buenos Aires, Argentina

In the Workshop, the possible causes of the almost null activity of the competition authorities in the region regarding abuses in technology transfer contracts were discussed. Some hypotheses discussed were:

  • lack of communication between authorities that register contracts and competition agencies; 
  • many cases may not reach final stages - they are resolved in early stages; 
  • the affected party may opt for arbitration instead of a complaint to the competition authority; 
  • competition laws do not include - with some exceptions - express provisions on practices affecting IP rights; 
  • an IP case leads the competition authority to collide with powers granted to the IP office - for example, the Pfizer case in Chile that dealt with a patent granted by INAPI (this is related to jurisprudence on abusive exercise of a right).

Given this outcome of the comparative study, it was discussed how to proceed further on the topic of competition law. One proposal was to expand the focus to analysis of cases involving IP in general and not only technology transfer. In the region there is greater activity by competition authorities in this area, although it is still incipient. Likewise, in order to cover innovation issues, it could be considered to include analysis of the digital economy. In these markets there are important intangible assets such as databases. It is also an area where there is the impression that there is greater entrepreneurship in Latin America. There are already a number of companies that have exceeded valuations of USD 1 billion, such as Mercado Libre.

However, the alternative of maintaining the focus on technology transfer contracts was also raised due to the importance of this phenomenon in the development of the region. Likewise, there is a perception that the low technology transfer activity in Latin America may be a competition problem and the guides may be a good catalyst for the attention of the competition authorities. 

In summary, the two alternatives that were discussed are as follows:

1. Guidelines for the analysis of competition cases on intellectual property related conduct.

  • Based on socio-economic characteristics relevant to LA (e.g. state of technological development) - identifying relevant public interests such as technology adoption, access to medical treatment, nutrition, etc. 
  • Leveraging points where the authority has discretion in the analysis - such as in defining relevant markets, balancing effects of conduct, etc. - and not in areas where legal reforms might be necessary - for example, to introduce exemptions. 
  • The audience for the guidance should be both competition and intellectual property authorities and the business community. 
  • Sources of information for the study that will serve as a basis for the guidelines: companies affected by clauses and other restrictive practices, competition authorities (administrative cases and other activities such as advocacy).
  • Take into account the scope of IP rights. 
  • Alternative approaches: cover all forms of technology transfer, not only contractual but also M&A for example. Recall the Monsanto merger case in Mexico where some of the conditions imposed dealt with obligations to license some technologies.

2. Alternative approach - continue to focus on technology transfer (contracts) with the same analysis points described above where applicable. 



Mexico: Rafael Perez Miranda
Colombia: Juan David Gutiérrez and Manuel Guerrero
Peru: Juan Francisco Rojas
Chile: Felipe Irarrázabal
Argentina: Marcelo D'Amore
Uruguay: Andrea Barrios
Brazil: Juliana Krueger

Moderator: Francisco Beneke