Intellectual Property and Competition: Interplay between Patents and Market Competition, Slides of Competition Law and Policy

Download Intellectual Property and Competition: Interplay between Patents and Market Competition and more Slides Competition Law and Policy in PDF only on Docsity! Patents and Competition Law Docsity.com Tensions - IP rights may - encourage innovation - reward enterprise - increase access to technology •and/or - restrain competition and market entry - reward needlessly. - Often national in scope; competition rules are pan-EC. 1 Docsity.com ITT Promedia [1988] ECR II-2937, CFI - Access to courts is a fundamental right. - Thus abuse will be wholly exceptional. - It may be an abuse where proceedings not reasonably considered on attempt to assert rights and can only serve to harass/eliminate competition. - Acting reasonably in defence or to enforce a right is not abusive; acting solely to harass may be abusive. 4 Docsity.com Pitney Bowes v Francotyp [1990] 3CMLR 466 - Application to Patents Court strike out defences under A82. - Allegations that might work under A82 included - charging unfairly high prices; charging smaller companies more; and discriminating against the home market. - But allegations that would not included – threatening to bring proceedings on a range of patents; cross-licensing with a main competition; pursuing action in order to force D into taking a licence; refusing to grant licences on similar terms as granted to others. - Some activities might constitute he tort of malicious prosecution. 5 Docsity.com Magill [1995] ECR I-74 - TV companies published daily TV schedules and their own weekly listing magazines. M wanted to publish a weekly magazine. - Compulsory licence of copyright ordered where failure to license inhibited the development of a new market in weekly listings products. Exercise of IP rights could exceptionally be abusive. - Existence of (i) no substitute source for the information and (ii) a potential secondary market seems crucial. No objective justification for the refusal. 6 Docsity.com Microsoft September 2007, CFI - ECJ confirmed IMS/Magill principles, adding: - principal market on which there is dominance may be hypothetical - New product test may be loosely applied: any product adding value over Microsoft’s own products. •“There is only one company that will have to change its illegal behaviour as a result of this ruling, and that is Microsoft….This was an exception—the kind of superdominance of a Microsoft is rare." •Neelie Kroes, European Commissioner for Competition 9 Docsity.com Glaxo v Dowelhurst [2000] FSR 371 - Allegation that concerted actions for infringement of TMs were illegitimate. - ToR could affect exercise of IP rights. - Allegation that claimants had joined together to disadvantage defendant was not fanciful. Pleadings amended. 10 Docsity.com Intel v Via [2003] FSR 12, 33 - V raised defences to patent infringement claims under A81 and 82. - A81 - licence already granted and offer of ‘asymmetric’ licence; A82 - refusal to license. Defences struck out. - Appeal allowed. ECJ case law in development. A81 and 82 often raised issues of fact which were not suitable for summary trial. Magill was only general rule – exercise might exceptionally be abuse. - ECJ might move towards essential facilities doctrine. - Infringement and validity would determine scope of dispute over competition issues. ECJ reference might be required after validity. 11 Docsity.com