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Friday, 3 August 2012

More on the MOU

The start of a beautiful relationship?
Following last week's post on the Role of the IPO, the IPO has since  published the Memorandum of Understanding (MOU) between the IPO and the Office of Fair Trading (OFT.)   The MOU came about in recognition of the complementarity (and sometimes conflict) between competition law and IP law.

Acknowledgement of the relationship between competition law and IP law is not new. OFT has examined IP previously. In the U.S., the Federal Trade Commission has been looking at IP for some time.  The IPO and OFT have long informally cooperated.  However, the MOU is new in terms of being an official link between the IPO and OFT.  This formal relationship reinforces the importance of competition and IP law and should add weight to the debate.

The MOU sets up a number of means through which the two governmental bodies will interact.  In terms of cooperation, they will share knowledge, expertise and, potentially, staff. They may also share information and may provide policy assistance.  The IPO and OFT have agreed to meet at least quarterly.  In a possibly exciting development, the IPO may refer any competition or consumer protection issue to OFT.  Specifically,
"The IPO may refer to the OFT any concerns it has in respect of competition and/or consumer protection issues that arise from, or relate to, IP rights.  The IPO shall, within the bounds of any legal constraints on the sharing of information, provide the OFT with all of the information at its disposal that is relevant to the concerns it has referred. The OFT will give due consideration to the referral and will respond to the IPO stating which action, if any, the OFT proposes to take in respect of the concerns referred. Decisions on any action that might be taken will, along with any other relevant considerations, be informed by the Prioritisation Principles currently applied by the OFT. "

The Prioritisation Principles call for OFT to "prioritise according to the impact of work on consumers and according to the work's strategic significance" and "balance this against the risks and resources involved." (More here.) The possibility of the IPO referring issues to the OFT could affect consumer protection issues which are heating up (such as new anti-piracy legislation.) This could be the start of something interesting. 

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