Intellectual Property, Market Power and the Public Interest

The main objective of the contributions to this book is to bring together two seemingly different strands of thought: the competition-law analysis of the exercise of intellectual property, and the discussion about the proper limits of protection, which at present takes place inside the intellectual property community. Both are burdened with their own problems, particularly so in Europe, where market integration and the divide between exclusionary and exploitative abuses ask for a more dimensional approach, and where the shaping of intellectual property protection is under not only the influence of many interests and policies, but a multi-level exercise of the Community and its member states. The question is whether, nevertheless, there is a common concern, or whether the frequently asserted convergence of the operation and of the goals of competition law and intellectual property law does not mask a fundamental difference namely that of, on the one hand, protecting freedom of competition against welfare-reducing restrictions of competition only, and, on the other, limiting the protection of exclusive rights in the (public) interest of maintaining free access to general knowledge. The purpose of the workshop held in 2007 at the College of Europe, Bruges, and whose results are published here, was to ask which role market power plays in either context, which role it may legitimately play, and which role it ought not to play. A tentative answer might be found in the general principle that, just as intellectual property does not enjoy a particular status under competition law, so competition law may not come as a white knight to rescue intellectual property protection from itself. However, the meaning of that principle differs according to both the context of the acquisition and the exploitation of intellectual property, and it differs from one area of intellectual property to the other. Therefore, an attempt has also been made to cover more facets of the prism-like complex of problems than is generally done.

Auteur

The Editors: Inge Govaere is full-time Professor in European Law at Ghent University, and since 2003 also Director of the European Legal Studies Department of the College of Europe, Bruges. She is author of The Use and Abuse of Intellectual Property Rights (London 1996), and co-editor of The 1992 Challenge at National Level (Baden-Baden 1990), as well as of 30 Years of European Legal Studies at the College of Europe (Brussels 2005). She has widely published in law journals and books, and participated in the Oxford Encyclopaedia of European Law. Hanns Ullrich is Professor at the College of Europe since 1991. He held a chair at the Universität der Bundeswehr München (1985-2004) and at the European University Institute, Florence (2003-2006). His main research areas are European and international economic law, in particular competition law and intellectual property law. He has published about a dozen books as author and/or editor and has written numerous articles in these and related fields. He is also editor in chief of the Revue internationale du droit économique.

Contenu

Contents: Hanns Ullrich/Inge Govaere: Preface - Josef Drexl: The Relationship Between the Legal Exclusivity and Economic Market Power. Links and Limits - Mark R. Patterson: Intellectual Property and Sources of Market Power - Heike Schweitzer: Controlling the Unilateral Exercise of Intellectual Property Rights. A Multitude of Approaches But No Way Ahead? - Mario Siragusa: Is there an Independent/Additional (European, International) Open-Market Criterion for Determining Abuse? - Pablo Ibáñez Colomo: Article 82 EC as a «Built-in» Remedy in the System of Intellectual Property. The Example of Supplementary Protection for Pharmaceuticals in Italy - Matteo Negrinotti: Abuse of Regulatory Procedures in the Intellectual Property Context. The AstraZeneca Case - Steven Anderman: The Strategic Use of Patent Enforcement and Acquisition Methods and Competition Law - Annette Kur: Strategic Branding: Does Trademark Law Provide for Sufficient Self Help and Self Healing Forces? - Elzbieta Traple: Trademarks as a Tool for Market Control - Eileen Sheehan: Can Intellectual Property Rights Be Construed by the Courts to Limit their Use for Anti-Competitive Purposes? - Christine Godt: Research Tools: Patents and the Information Market in the Knowledge Based Economy - Imelda Maher: Exploitative Abuses: Which Competition Policy, Which Public Policy?