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

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dc.contributor.author SCHWEITZER, Heike
dc.date.accessioned 2007-12-10T10:49:22Z
dc.date.available 2007-12-10T10:49:22Z
dc.date.issued 2007
dc.identifier.issn 1725-6739
dc.identifier.uri http://hdl.handle.net/1814/7625
dc.description.abstract 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 en
dc.language.iso en en
dc.publisher European University Institute
dc.relation.ispartofseries EUI LAW en
dc.relation.ispartofseries 2007/31 en
dc.subject Intellectual Property Rights en
dc.subject Refusal to license en
dc.subject Magill en
dc.subject IMS Health en
dc.subject Microsoft en
dc.subject Abuse of dominant position en
dc.subject Efficiency defence en
dc.subject Data General en
dc.subject Kodak en
dc.subject Xerox en
dc.subject Trinko en
dc.subject Follow-on innovation en
dc.title Controlling the Unilateral Exercise of Intellectual Property Rights: A Multitude of Approaches but No Way Ahead? The Transatlantic Search for a New Approach en
dc.type Working Paper en


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