EU Competition Law and Intellectual Property Rights The Regulation of Innovation

by Anderman, Steve; Schmidt, Hedvig

• ISBN13: 9780199589968
• ISBN10: 0199589968
• Edition: 2nd
• Format: Paperback
• Copyright: 2011-04-08
• Publisher: Oxford University Press

Summary

Widely read and appreciated in its first edition by students, academics and junior practitioners, EU Competition Law and Intellectual Property Rights was the first book to offer an accessible introduction to the interface between competition law and intellectual property rights. Now fully updated, but retaining the accessible approach, it continues to represent an ideal gateway to this increasingly dynamic interface, offering a sound introduction to the topic based on thorough legal analysis. It provides a foundation to EU competition law rules as they relate to intellectual property rights, and explores how such a template can be applied to existing intellectual property rights and adapted to new technologies such as telecommunications and information technology. It demonstrates how, both under the EU law and as a matter of economic policy, EU competition law must provide a set of outer limits to, and a framework of rules which regulate, the exploitation and licensing of intellectual property rights. A group of landmark cases since the first edition - the Microsoft case and its predecessor concerned with database rights, the IMS case - has extended the scope of Article 102 TFEU to a refusal to license interface codes. Article 102 has also been applied in the Astra Zeneca case to regulate the behavior of pharmaceutical companies and the pharmaceutical sector has recently experienced a sectoral enquiry. Finally, the field of industrial standards, patent ambushes and FRAND obligations has become the subject of competition law scrutiny. Under Article 101 TFEU, the modernization reforms and the new Technology Transfer Block Exemption Regulation 772/2004 together with the Technology Transfer Guidelines have quite radically reformed the method that lawyers must use when analysing the limits of clauses in intellectual property licensing. It requires greater economic understanding, offers less legal certainty but allows more flexibility than its predecessor. The book offers a comprehensive insight to these new developments in a textbook style ideal for those approaching the subject for the first time, or a useful reference for those with more experience.

Author Biography

Steve Anderman is Professor of Law in the Department of Law at University of Essex, UK and Guest Professor at Stockholm University school of Law. He has worked as an Expert on Competition Law for the Economic and Social Committee of the EU from 1984-2004 and has advised both the Singapore and Chinese governments on the IP consequences of their competition laws in 2004 and 2007 respectively. Dr Hedvig Schmidt is Lecturer in EU Law in the School of Law at the University of Southampton, UK. She teaches competition law and specializes in tying and technological integration.

Table of Contents

Tables of Cases	p. ix
Tables of Legislation and Related Instruments	p. xxiii
List of Abbreviations	p. xxix
Introduction
General Introduction	p. 3
EU Competition Law as a System of Regulation of Intellectual Property Rights	p. 3
Competition Policy and Intellectual Property Rights: The Innovation Policy Context	p. 11
The Relationship Between Intellectual Property Rights and Competition Law Under the Treaty	p. 17
Introduction	p. 17
Grant and 'Existence'	p. 20
Permitted and Prohibited Exercise of Intellectual Property Rights	p. 21
The Objectives of the Rules on Competition in the Treaty	p. 25
Effective Competition	p. 25
The Goal of Fair Competition	p. 27
The Goal of Integration	p. 29
Article 102 and Intellectual Property Rights
Article 102 and Intellectual Property Rights	p. 33
The Relevant Market and Intellectual Property Rights	p. 37
Introduction	p. 37
The Relevant Product Market	p. 38
The Relevant Geographic Market	p. 53
The Concept of Dominance and Intellectual Property Rights	p. 57
Introduction	p. 57
Dominance and Intellectual Property Rights	p. 58
The Methods of Assessing Dominance	p. 59
Dominance, Intellectual Property Rights, and Barriers to Entry	p. 63
A Note on Ordinary and Special Dominance	p. 64
The Concept of Abuse and Intellectual Property Rights	p. 73
The Expansion of the Concept of Abuse under Article 102 from Exploitative to Exclusionary Conduct	p. 75
The Expanded Concept of Abuse and Restrictions on Intellectual Properly Rights	p. 85
Refusals to Supply and License and Intellectual Property Rights	p. 93
Refusals to Supply: The Court of Justice and Commission	p. 93
From Refusal to Supply to Refusal to License: The Commission Decisions	p. 98
Magill and the 'Exceptional Circumstances' Test	p. 102
Refusals to Continue to License or Supply Interface Information on an 'Aftermarket'	p. 109
The Microsoft Case in Europe and 'Exceptional Circumstances'	p. 111
Competition and IP Remedies	p. 119
The Pricing of Compulsory Licensing	p. 120
Tying	p. 127
Introduction	p. 127
The EU Courts' Approach to Tying in Case Law	p. 130
Tying and Intellectual Property Rights	p. 142
Excessive Pricing and Intellectual Property Rights	p. 143
Introduction	p. 143
Article 102(a) Generally	p. 145
Article 102(a) and Intellectual Property Rights	p. 150
Dual Markets, Intellectual Property Rights, and Unfair Pricing	p. 154
Collecting Societies and Excessive Pricing	p. 155
Conclusion	p. 159
Exclusionary Pricing Policies: Discriminatory Pricing, Rebates, and Discounts	p. 161
Discriminatory Pricing	p. 161
Conditional Rebates in a Single Market	p. 174
Exclusionary Pricing: Predatory Pricing and Margin Squeeze	p. 189
Predatory Pricing	p. 189
Margin Squeeze	p. 194
Article 101 and Intellectual Property Licensing in a Modernized Setting
Introduction: Intellectual Property Rights Licensing and Competition Policy Generally	p. 201
Introduction	p. 201
The Modernization of EU Law Applicable to IP Licensing Agreements	p. 203
The New Analytical Tools Provided by the New More Economic Approach	p. 207
The Structure of Article 101 TFEU and IP Licensing Agreements	p. 213
Introduction	p. 213
The Process of Exemption under Article 101 (3) TFEU	p. 215
Article 101 (2) TFEU And Unenforceability	p. 217
The Clearance of IP Licensing Agreements under Article 101(1) TFEU	p. 218
The Judicial Concept of Restriction of Competition and IPR Licensing	p. 233
Introduction	p. 233
Judicial Authority before Modernization	p. 234
The Scope of the Patent Doctrine and Restriction on Competition	p. 235
The Consten and Grundig Judgment	p. 236
The Commission's Change of Policy	p. 238
The Court of Justice's Application of the Appreciability Test to Intellectual Property Rights	p. 242
The Technology Transfer Block Exemption Regulation and Technology Transfer Agreement Guidelines	p. 251
Introduction: The Evolution of EU Competition Policy towards IP Licensing Agreements	p. 251
The Current Phase	p. 255
The Main Features of the New Technology Transfer Regulation and Guidelines	p. 257
The New Methods of Assessing Individual Restraints in Licensing Agreements outside the Safe Harbour of the TTBER	p. 266
The Regulation of Territorial Restraints in Intellectual Property Right Licensing Agreements Under Article 101 TFEU	p. 273
Introduction	p. 273
Exemptible Exclusive Territoriality	p. 274
Field of Use Restrictions	p. 278
The Regulation of Non-Territorial Restraints in Licensing Agreements	p. 279
Introduction	p. 279
Non-Territorial Restraints which are Non-Restrictive of Competition	p. 280
Technology Pools, Industrial Standards, and TTBER	p. 291
Introduction	p. 291
Stage 1: The Product Formulation Stage	p. 293
Stage 2: The Creation of the Standard and the Selection of Essential Patents	p. 294
Stage 3: Licensing Out	p. 296
The FRAND Commitments	p. 297
The Legal Framework for Technology Pools and Standardization Agreements	p. 298
Technology Pools, TTBER, and Guidelines	p. 300
The Competition Concerns and the Creation of the Pool	p. 300
The Assessment of Individual Restraints	p. 302
The Institutional Framework Governing the Pool	p. 303
Conclusions	p. 304
Remedies	p. 307
Introduction	p. 307
Remedies Applied to Article 102 Cases	p. 309
Article 101 Remedies	p. 312
Commitment Decisions	p. 315
Fines and Penalties	p. 315
Conclusion	p. 317
Conclusions	p. 319
Introduction	p. 319
Article 102 TFEU and IPRs	p. 320
Article 101 TFEU and IPRs	p. 324
Conclusion	p. 326
Excerpts from the Treaty on the Functioning of the European Union	p. 329
Commission Regulation (EC) No 772/2004	p. 333
Bibliography	p. 343
Index	p. 351
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