Competition Law Review

Volume 1 - Issue 2

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Competition Law Review - Volume 1 Issue 2 Volume 1 Issue 2 (1.14 MB)



Imelda Maher Editorial (126 K)


Does the Microsoft Case offer a New Paradigm for the ‘Exceptional Circumstances’ Test and Compulsory Copyright Licenses under EC Competition Law?
Steven Anderman Article 1 - Anderman (268 K)

This article examines the Microsoft case in the light of existing judicial authority to consider the scope for a remedy of a compulsory licence under Article 82 of the Treaty. Both the IMS and Microsoft cases turn on a competition law theory of abusive ‘leverage’ by a dominant IP owner in a dependent ‘aftermarket’, indicating that an ‘aftermarket’ scenario figures prominently in the ‘exceptional cases’ in which competition law under the Treaty is prepared to limit the exercise of copyright. However, whereas the treatment of the Commission’s decision in IMS by the Community Courts tends to confirm the importance of key elements of the paradigm created by the Magill judgment for the ‘exceptional circumstances’ test under Article 82, the Microsoft case seems to require a new paradigm for that category. The article argues that the Microsoft facts include a circumstance, not present in Magill, which could significantly change the calculus in the ‘exceptional circumstances’ test and expand it to a new category. Following Commercial Solvents, and subsequent ECJ decisions, if a dominant firm with a monopoly product who has been dealing with a contractor in an aftermarket suddenly chooses to vertically integrate its operations and introduce its own product on that market, it may have an obligation to continue to ‘supply’, i.e. license or inform its existing customers (now competitors) in the downstream market, unless it can offer an objective justification for that refusal. A similar obligation may therefore be applied to an IP protected product under Article 82

IMS and Microsoft Judged in the Cold Light of IMS
James Killick Article 2 - Killick (298 K)

This article analyses the three major recent cases dealing with the boundary between EC competition law and intellectual property rights: the Commission's interim measures decision in the IMS case, the European Court of Justice's later judgment in IMS and, finally, the Commission's decision in the Microsoft case. The article starts by analysing the key legal and factual elements in each of these three precedents. It then examines whether the Commission's approach in its IMS and Microsoft decisions is consistent with that of the European Court of Justice in its IMS judgment. The analysis shows that the Commission's approach in both Decisions differs from that laid down by the Court. In particular, the Commission has adopted a less demanding standard as regards the conditions under which compulsory licensing of intellectual property may be ordered. The article explores a number of other topics in passing, such as the role of the trustee in giving effect to the compulsory licensing ordered by the Commission in the IMS and Microsoft decisions and the relevance of standardisation in both cases. The article also examines the approach taken in relation to objective justification in the Microsoft Decision and concludes that it raises serious questions as regards predictability and legal certainty.

Essential Function vs Essential Facility: Defining the amount of R&D protection in high-tech industries after IMS and Microsoft
Carsten Reimann Article 3 - Reimann (284 K)

This paper examines the “law of R&D protection” from three different perspectives: (1) Article 81 EC, (2) merger situations, and (3) Article 82 EC. By way of background, the author looks at what legal options are available for companies to protect their R&D investments in highly innovative industries. As a general framework, he distinguishes early, medium and market stages of research and development activity. The main section of the paper then deals with various competition law issues which arise at each of these three stages, including “R&D aid” and Block Exemption Regulations such as the Technology Transfer Regulation. EC merger decisions and other relevant case law are also discussed, in particular the IMS and Microsoft cases. Key issues are illustrated by examples from the pharmaceutical and the printer industry. The paper concludes with comparing to what extent R&D investments are protected under EC competition law at the horizontal - Article 81 & merger control - and vertical - Article 82 - level.

Competition Law as a Patent 'Safety Net' in the Biopharmaceutical Industry
Irina Haracoglou Article 4 - Haracoglou (298 K)

The present paper examines the relation and interaction of competition and patent law as tools for innovation in the biopharmaceutical industry. The paper starts by positing the concern that has been raised in the biotech industry relating to restricted access to essential tools for innovation due to the increase in patenting of essential upstream research. While the implications of such a trend are not clear, the need to ensure the presence of adequate ‘safety nets’ is seen as paramount. In view of that, the paper proceeds to examine certain patent law provisions to address such concerns. It is argued that patent law does not provide a remedy in all such cases and that hence a remedy needs to be sought outside the patent system. Competition law then is examined as a complement to the patent system in the innovation ‘balance’. The relation between the two bodies of law is examined both from a competition law and a patent law perspective. Adopting the view that there is no reason to treat IP differently from other property, the paper concludes by suggesting the viewing of the essential facilities doctrine as a potential safety net to address the concern of access to essential upstream technology.