IP/Competition Interface

On March 31, 2016, the Competition Bureau (“Bureau”) published the long-awaited update to its Intellectual Property Enforcement Guidelines (“IPEGs”). According to the Bureau, the aim of the updated IPEGs is threefold. They:

  • Clarify the Bureau’s position on patent litigation settlements and product switching—notably that settlements of proceedings under the Patented Medicines

On June 9, 2015, the Competition Bureau (“the Bureau”) released, for public comment, an updated draft of its Intellectual Property Enforcement Guidelines (“the Guidelines”) proposing a number of substantive revisions. This update follows two earlier versions published in April 2014 and September 2014. The first two updates sought to address the 2009 amendments to the

On April 2, 2014 the Competition Bureau (the “Bureau”) released a draft update of its Intellectual Property Enforcement Guidelines (“IP Guidelines”) for public consultation. First released in 2000, the IP Guidelines articulate how the Bureau approaches the interface between competition policy and intellectual property (“IP”) rights, and describe how the Bureau will determine whether conduct

The principal Canadian competition law theme in 2013, as with the year before, was enforcement. Criminal enforcement in the areas of price-fixing, bid-rigging and misleading advertising continued with new guilty pleas against various companies and individuals (e.g. auto parts, air cargo, chocolate, real estate advisory services contracts, gasoline and retail multiple telemarketing schemes). The Competition Tribunal (the “Tribunal”) released two decisions involving the Toronto Real Estate Board (“TREB”) and VISA and MasterCard that provided significant interpretations of the scope of the abuse of dominance and price maintenance provisions of the Competition Act (the “Act”). The Superior Court of Ontario also released its decision dismissing, in part, the Competition Bureau’s (the “Bureau”) misleading advertising charge against Rogers and Chat-r with respect to the claim of “fewest dropped calls”.  Finally, the Supreme Court of Canada granted leave to appeal in Tervita Corporation v Commission of Competition. Five months earlier, the Federal Court of Appeal (“FCA”) upheld the order of the Tribunal requiring Tervita Corporation to divest the Babkirk hazardous waste landfill site in northern British Columbia that it obtained through its acquisition of Complete Environmental Inc.

With respect to private litigation, the Supreme Court of Canada released a trilogy of long awaited decisions in proposed class proceedings brought by indirect purchasers of products alleging competition law violations.   The Supreme Court concluded, among other things, that indirect purchasers have a cause of action, resolving a conflict in appellate jurisprudence in Canada. The Supreme Court’s decisions are expected to have a profound impact upon cartel-related class actions in Canada.

2013 also saw John Pecman appointed as Commissioner of Competition on June 12, 2013 for a five-year term. Prior to his appointment as Commissioner, Mr. Pecman held the position of Interim Commissioner from September 2012 to June 2013.

Our Bulletin reports on these and other developments.


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The year of 2013 provided further opportunity for development of South Africa’s competition policy, law and practice. The year’s highlights included the conclusion of the Competition Commission’s Fast Track Settlement  process involving bid rigging in the construction sector; some important merger decisions; developments in the law on pursuit of private damages; and clarity on numerous procedural matters in enforcement actions. These are elaborated upon further below.

Mergers

Merger Regulation Trends

324 mergers were notified to the Competition Commission in the period April 2012 to March 2013.  This represents an increase of around 10% to the 291 mergers notified in the previous year. Most of these transactions were in the manufacturing 23%, property 27% and mining sectors.

In this most recent period, 85% of mergers were approved unconditionally. 11% were approved subject to conditions (28 behavioural remedies aimed at public interest issues and seven structural remedies); and 4% were withdrawn or dismissed for lack of jurisdiction.  No mergers were prohibited.

The Commission continued with a trend we identified last year in protecting and advancing public policy considerations (most notably protection of employment) in its merger analysis. The case of Stefanutti/Enorgotec gave rise to the fastest decision yet by the authorities (reportedly made within four hours of filing of the Commission’s recommendation to the Tribunal) was based largely on the need to protect employment in a firm under severe financial distress.

In Glencore / Xstrata, the Competition Tribunal confirmed an agreement between the merging parties and the National Union of Mineworkers that the number of skilled employees retrenched as a result of the merger would be limited to 80, and the number of semi-skilled and unskilled employees retrenched would be limited to 100.  Greater protection was provided for semi-skilled and unskilled workers, who may only be retrenched after two years following a 90 day review period, during which the necessity of the potential retrenchments had to be considered in consultation with the trade union.


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