View
213
Download
0
Category
Preview:
DESCRIPTION
General Question: Does competition law interfere with the exploitation of IP rights? Yes - —Compulsory licensing —Restrictions on the terms of a license
Citation preview
IP Related Competition Issues
Prof. Dr. Peter ChroczielFreshfields Bruckhaus DeringerFrankfurt am Main
DF379116
Patent Enforcement by Market Leaders:
Patent = Dominant Position ?
Enforcement = Abuse ?
General Question:
• Does competition law interfere with the exploitation of IP rights?
• Yes -— Compulsory licensing— Restrictions on the terms of a license
Article 82 and Compulsory Licensing
• Can refusal to license be an abuse of a dominant position ?• Yes:
— Magill: a dominant copyright owner abused its position simply by refusing to license its rights to others
• But:— Narrow terms of judgment— Tiercé Ladbroke and Oscar Bronner
• The future and IMS
The background - Magill
• The facts• Copyright confers the exclusive right of reproduction• Refusal to license is not in itself an abuse of dominance• Refusal would be an abuse in „exceptional
circumstances“:— Preventing the appearance of a new product— No justification for the refusal— Reserving a secondary market (TV guides)
“Exceptional Circumstances” - a Tough Test• Tiercé Ladbroke
— Licensor not present on secondary market (betting)— Televised racing not “essential” for bookmakers— Refusal to license did not prevent a new product
• Oscar Bronner— No elimination of competition on downstream market— Access (to distribution system) not “indispensable”
• IMS - a new meaning for “exceptional circumstances” ?
IMS
• The facts - a refusal to license the ‘1860’ brick structure• The Commission found
— A prima facie infringement of Article 82— Criteria for interim measures were satisfied
• The finding based on:— Refusal being likely to eliminate all competition in the relevant
market— Refusal incapable of objective justification— Access being indispensable, i.e. no actual or potential substitute
Recent News: Shift to Patents
• Liberal application of principles by national courts• Rotterdam court• Düsseldorf court
Exceptional Circumstances
• Magill list not exhaustive• Magill list exemplary• No new product necessary• No exclusion of all competition necessary
Magill in Light of Bronner - Rotterdam -
• Competition in same market• Customer should have choice
Magill in Light of Bronner - Düsseldorf -
• No actual or realistic substitute product available• Exclusion of competition by company requesting use• Refusal not justifiable
Magill applied to Patents
• Use of patent indispensable— Technical reasons— Expectations of market
• Refusal not justifiable— Costs of development amortized— Existing licensees bring no efficient competition
Recommended