BURRELL LECTURE 2004

Last night the IPKat was fortunate to attend the 7th Annual Burrell Lecture of the Competition Law Association. This year's lecture, "Intellectual Property, Free Movement and Competition: Conflicting of Complimentary?", was delivered by Lord Hoffmann, an active member of the Judicial Committee of the House of Lords and an enthusiastic personality on the intellectual property scene.

Lord Hoffmann started by explaining that the legislature sought to establish a balance between stimulating competition in innovation, on the one hand, and stimulating competition in production and distribution on the other hand. In a magisterial survey of decisions of the House of Lords, the Privy Council and the European Court of Justice, he described the tensions between these competing interests as they applied to copyright, designs, patents and ultimately trade mark rights. This analysis emphasised the contrast between the "structural" nature of IP rights and the "behavioural" nature of competition law: IP rights provide the overall structure for the protection and exploitation of intellectual creations, while competition law addresses individual instances of aberrant market behaviour. He observed that, where the courts regularly seek to restrict or modify the application of IP rights on a case-by-case basis in order to protect the perceived interests of competition policy, this is a signal that the regulatory process has gone wrong. A case in point was the decision in British Leyland v Armstrong Patents, where the House of Lords took it upon itself to create and apply a form of competition policy which was not inherent in the IP right itself. His Lordship also expressed the view that adversarial litigation between an IP owner and his foe was not the best forum for the protection of the perceived public interest, especially since there was no amicus procedure for articulating and representing that interest.

He further emphasised various differences in approach between the ECJ and the UK courts. Of note is his assertion that UK courts tend to nip what they perceive as problematic wide IP rights in the bud before they give rise to competition law issues while the ECJ is prepared to let such wide IP rights continue to exist, entrusting their regulation to free movement and competition law.

Following the lecture the IPKat thoroughly enjoyed an excellent dinner at the Middle Temple, by kind invitation of barrister and guest blogger Ashley Roughton of Hogarth Chambers.

More on Lord Hoffmann here and here
Tales of Hoffmann here and here . Legend of Hoffmann here.
IP case involving Hoffmann here