Forum Shopping: Finding the Right Balance between the Enforcement of Competition Law and the Protection of Intellectual Property Rights
Authors Itumeleng Lesofe
Affiliations: Principal Analyst, Competition Commission SA
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 450 – 477
Much has been said and written about forum shopping of late. Some courts and scholars have even recognised and, to some extent, endorsed the practice. This phenomenon also appears to have surfaced in disputes relating to the protection of intellectual property rights (IPRs). In this regard, there appears to be a growing trend among litigants with disputes relating to patents, to use forums and institutions that are not necessarily designed to resolve such disputes. This is notable in a recent decision by the Competition Commission of South Africa to prosecute two firms accused of abusing their dominant positions by enforcing IPRs beyond their period of protection. While there may be benefits associated with the practice, pervasive forum shopping can also lead to the concentration of cases in one or very few forums which, in the eyes of litigants, are likely to make favourable determinations. Thus, forum shopping may encourage litigants to make an outcome-determinative choice when selecting an appropriate forum. This in turn can create inefficiencies. The aim of this article is to determine how best to approach the quandary of forum shopping in cases relating to the protection of IPRs. The article focuses on the interplay between intellectual property law and competition law, and determines whether the intervention by competition agencies in intellectual property matters is necessary.