Commentary on 'Extension of Intellectual Property Rights

• Author: Ejan Mackaay
• Pages: 146-155

146

Commentary on “Extension of Intellectual

Property Rights”

Ejan Mackaay1

A. INTRODUCTION

Teresa Scassa’s core thesis is that the balance at the root of intellectual

property rights has been gradually displaced towards an extension of

those rights well beyond what was contemplated in their original de-

sign, and that the displacement is detrimental to innovation and com-

petition. e law is out of kilter. is observation will be the f‌irst tier

of this brief comment.

is thesis is illustrated in two extensions, the f‌irst where one intel-

lectual property right is used to overcome the limits of another — such

as the attempt to rely on trade-mark law to shore up an expired patent

right — and the other where payments are made to a competitor to stay

out of one’s f‌ield, even where one has no intellectual property right to

stand on. e paper is interesting in its detailed presentation of cases

and practices in this particular stretch of the intellectua l property-

competition law interface. It shows how actors react rationally to the

overtures provided by legal structures a nd puts in stitutional f‌lesh on

the rather bony structures economists usually of‌fer to tackle the issues

of that interface.

 Professor in the Facult y of Law and Director of the Centre for Busi ness Law

and International Trade (CDACI), Université de Montréal.