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Abstract:
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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 |