IDEAS home Printed from
MyIDEAS: Log in (now much improved!) to save this paper

Controlling the Unilateral Exercise of Intellectual Property Rights: A Multitude of Approaches but No Way Ahead? The Transatlantic Search for a New Approach

Listed author(s):
  • Heike Schweitzer
Registered author(s):

    The 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

    If 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.

    File URL:
    File Function: Full text
    Download Restriction: no

    Paper provided by European University Institute (EUI), Department of Law in its series EUI-LAW Working Papers with number 31.

    in new window

    Date of creation: 01 Dec 2007
    Handle: RePEc:erp:euilaw:p0092
    Contact details of provider: Web page:

    No references listed on IDEAS
    You can help add them by filling out this form.

    This item is not listed on Wikipedia, on a reading list or among the top items on IDEAS.

    When requesting a correction, please mention this item's handle: RePEc:erp:euilaw:p0092. 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: (Machteld Nijsten)

    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.

    This information is provided to you by IDEAS at the Research Division of the Federal Reserve Bank of St. Louis using RePEc data.