Commerce Commission issues Draft Guidelines on Competition Law and Intellectual Property Rights

Historically, the New Zealand Commerce Act 1986 has exempted certain conduct in relation to intellectual property from the Act’s general prohibitions on anti-competitive behaviour.

However, recent amendments to the Act will remove this protection and all conduct in relation to IP will be subject to the general terms of the Act from 5 April 2023.

In order to assist with this transition and help businesses understand the implications of this change, the Commerce Commission has issued draft Guidelines which are available here.

The Guidelines clarify that the general principles of competition law under the Commerce Act 1986 apply to intellectual property, and discuss several situations in which competition issues may arise in the exercise of intellectual property rights. These situations include:

  • Refusals to licence intellectual property;
  • Restrictive licensing of intellectual property;
  • Price restrictions;
  • Practices that extend the market power of patents beyond their term;
  • Settlement of Intellectual Property Disputes.

The Guidelines are clear that a finding of anti-competitive conduct is situation specific and provides examples of specific situations and the factors that may be assessed in assessing whether there is a breach.

The Commission is seeking feedback and submissions on the draft Guidelines by 10 February 2023.

Please contact us if you would like further information or assistance with considering this change, its implications and making a submission.

Jesse Strafford - December 2022

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