Controlling the Unilateral Exercise of Intellectual Property Rights: A Multitude of Approaches but No Way Ahead? The Transatlantic Search for a New Approach
AbstractThe complex interface between intellectual property law and competition law is currently under review both in the US and the EU. One field of contention is the unilateral exercise of intellectual property rights. This paper presents the different approaches recently taken by different US courts, critically reviews the ECJ’s jurisprudence in the much-debated decisions Magill and IMS Health and discusses the test proposed by the EU Commission in its Discussion Paper on Exclusionary Abuses, finding that none of the approaches has addressed the problem convincingly so far. In searching for a way ahead, the paper attempts to systematize the different positions taken in the literature, contrasting in particular an IP law approach and a competition law approach. It argues that a pure IP law approach, popular in the US, is not fully applicable in the EU where IP law remains national and must respect the supremacy of the EU competition rules which must be applied uniformly in all Member States. Other theories which strive to take both IP and competition law rationales into account – e.g. Heinemann’s scope of reward-theory – leave open the criteria on the basis of which this shall be done. The most promising approach, then, may be to shift back attention towards competition policy rationales and to focus on the concept of contestable markets, as by Heinemann and Drexl have recently proposed. The threshold for antitrust intervention must, however, remain high. The three criteria used in the telecommunications sector to decide when regulation is justified may be of help to determine cases of legitimate intervention
Download InfoIf you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.
Bibliographic InfoPaper provided by European University Institute (EUI), Department of Law in its series EUI-LAW Working Papers with number 31.
Date of creation: 01 Dec 2007
Date of revision:
Contact details of provider:
Web page: http://www.eui.eu/LAW/
You can help add them by filling out this form.
reading list or among the top items on IDEAS.Access and download statisticsgeneral information about how to correct material in RePEc.
For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Machteld Nijsten).
If references are entirely missing, you can add them using this form.