Propriété intellectuelle, concurrence et régulation – limites de protection et limites de contrôle
In the European Union, competition policy regarding intellectual property related restrictions of competition has considerably changed in orientation. Whereas in the field of contractually agreed upon or concerted practices (Art.81 EC Treaty) licensing agreements, namely agreements on the ?transfer of technology?, benefit from a generous group exemption regulation, and whereas patent pools are assessed quite liberally, unilateral practices (Art. 82 EC Treaty), in particular refusals to licence and even patenting strategies, are looked upon with vigilance. This has not only resulted in some contradictory policy statements, but also led to an increased potential for conflict between the property owner?s autonomy of acquiring and exploiting his exclusive rights and the rules on competition, which all require a re-examination of the relationship between the system of protection of intellectual property, in particular the patent system, and competition law. Contrary to a generally held view, according to which the objectives of the system of intellectual property and of the rules on competition are complementary, the author sees the grant and the protection of exclusive rights as a sub-system of a competition-based ordering of markets, whose purpose is to promote inter-technology competition by enabling enterprises to enter into such competition for substitute technologies. Competition law, in its turn, is supposed to maintain a system of undistorted competition. As such, it is directed against any restriction of competition. It is not, however, aimed at correcting the system of intellectual property either in general or on a case-by-case basis, nor meant to compensate for any deficits of the system of protection. Rather, such ?regulation? of protection is a matter of the proper design and of the judicious application of the property system, of its limits, and of its inherent ?exceptions?. With this in view the author develops the idea of a functionalist and contextual construction of the reach of protection and of the implementation of its objectives, both of which will help to better understand and to circumscribe with more precision the autonomy, which the owner enjoys as regards the acquisition and the exploitation of exclusive rights. This thesis then is illustrated by a new approach to the conflicts, which may exist between patent protection and the concept of ?open standardization?.
Volume (Year): t. XXIII, 4 (2009)
Issue (Month): 4 ()
|Contact details of provider:|| Web page: http://www.cairn.info/revue-internationale-de-droit-economique.htm|
When requesting a correction, please mention this item's handle: RePEc:cai:riddbu:ride_234_0399. See general 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: (Jean-Baptiste de Vathaire)
If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.
If references are entirely missing, you can add them using this form.
If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.
If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.
Please note that corrections may take a couple of weeks to filter through the various RePEc services.