Intellectual Property, Antitrust and Cumulative Innovation in the EU and the US

For Christophers, capitalism is always poised on a knife edge “between the contradictory forces of competition and monopoly, and perennially in danger of lapsing too far to one side or the other” (9). Capitalism avoids disasters by deploying law—antitrust law (“competition law” in Europe)—to reduce monopolization to a tolerable level, and intellectual-property law to encourage innovation. These areas of law are intimately related conceptually, because intellectual-property law confers the power to prevent others from exploiting patents or trademarks, thus creating monopolies with respect to its subject.Christophers paints with a broad brush, though, in passing, he concedes that he has simplified certain areas for purposes of clarification. Mapping large-scale economic developments from the late nineteenth century to the present and focusing on the United States and Great Britain, he identifies three periods of pendulum-like cycling (214). From the late nineteenth century to around 1946, a combination of strong intellectual-property rules and weak antitrust enforcement led to excesses of monopolization. The next period, lasting until the 1970s, saw antitrust law strengthening, followed by a reversal into the present period. Christophers notes as well that the modern emphasis on intellectual-property law has ascended to the international level through such instruments as the trips (Trade-Related Aspects of Intellectual Property Rights) Agreement.Part I of The Great Leveler develops Christophers’ position on controversies within contemporary Marxist theory, engaging extensively with positions developed in the work of Harvey.1 Part II presents Christophers’ historical overview. The breadth of the brushstrokes makes evaluation difficult, though the description of the three periods seems roughly accurate. Emphasizing law as an equilibrating mechanism to preserve capitalism is a promising approach, but Christophers’ exposition raises questions. Although the reciprocal relationship between antitrust and intellectual-property law is correct on the conceptual level, intellectual-property law might not be able to do everything that Christophers claims for it. He lists the Dow Jones Index’s component companies to support the claim that many large companies rely on patent and trademark protection to secure their positions (159). Yet, plausible as his claim is regarding patents (for, say, pharmaceutical companies), it is less plausible for trademarks, which provide substantially weaker “monopoly-like” protection. In supermarkets, for example, branded items sit right next to house versions that duplicate them in everything but name. Christophers’ list includes numerous companies that have assets that are probably due to trademarks rather than to patents. Stronger evidence is necessary to support the idea that trademarks are as important as patents in maintaining market position for companies in general.The mechanism by which antitrust and intellectual-property law perform their equilibrating function also deserves greater attention. Christophers clearly maintains that these domains of law perform as they do for capitalism because they have to do so. Representative statements are: “The law largely reinforced monopolizing tendencies…because it had to” (124); “it happened because it had to” (169); “once more, the law was called upon to come to capital’s aid” (218). Functional accounts of law may be familiar, but they are exceedingly difficult to develop in detail, because the agents who actually articulate and implement the law somehow have to enter into the equation, threatening its objectivity. Christophers gestures toward a more concrete account, with only occasional references to “perceptions” (141) and “opinions” (177)—“opinions” being elaborated most explicitly in connection with the rise of Chicago-influenced antitrust law in the United States (217). It would have been helpful to have some examples of how ideas about intellectual-property law contributed to the pendulum-like effects.Attempting to connect the conceptually related areas of antitrust and intellectual-property with broad developments is an ambitious enterprise. Christophers might well be on to something. Yet, the most that can be said about The Great Leveler at this point is “interesting, maybe correct, but not proven.”

Rapid technological innovations have challenged the conventional application of antitrust and competition law across the globe. Acknowledging these challenges, this original work analyses the roles of innovation in competition law analysis and reflects on how competition and antitrust law can be refined and tailored to innovation. With chapters from well-established and up-and-coming competition law and economics scholars – from the Academic Society for Competition Law (ASCOLA) – this book reflects on the role innovation has played, and can continue to play, within competition and antitrust law. In addition to uncovering innovation concerns within their analysis, the authors also make important contributions to academic and policy debates on the relationship between these areas of law and other instruments of innovation regulation, such as data protection regulation, intellectual property law, the regulation of big data, platforms and artificial intelligence. Academics in competition and intellectual property law, economics and political science working on data protection or innovation more generally will find this book a useful insight into future challenges for constructing meaningful and effective laws within the area of innovation. Policymakers and practising lawyers will also find the example cases useful, especially for refining and restructuring perception about innovation in competition law.

Contemporary Intellectual Property: Law and Policy, sixth edition, offers a unique perspective on intellectual property (IP) law, unrivalled amongst IP textbooks. An accessible introduction to IP law, it provides not only a comprehensive account of the substantive law, but also discusses the overarching policies directing the legal decision-making, as well as areas for further debate. Intellectual property law is an increasingly global subject, and the book introduces the relevant European and international dimensions—along with the implications of Brexit—to present a realistic view of the law as it actually operates. It explores IP law as an organic discipline, evaluating the success with which it has responded to new challenges. Images and diagrams, with analysis of key cases and key extracts, are all incorporated alongside the author commentary to clearly illustrate the core principles in IP law. Exercise, questions, and discussion points are provided to help the reader to engage with the material, and additional material is provided in the Online Resources. Beyond providing an up-to-date account of IP law, the text examines the complex policies that inform modern IP law at the UK, European, and international levels, giving the reader a true insight into the discipline and the shape of things to come. The focus is on contemporary challenges to IP law and policy, and the reader is encouraged to engage critically with the text and the subject matter. The book has been carefully developed to ensure that the complexities of the subject are addressed in a clear and approachable way.

Can antitrust law enforcement spur innovation? Antitrust regulation of patent consolidation and its impact on follow-on innovations

Investment law and intellectual property (IP) law have largely developed unaffected by each other and, so far, any discussion on their interaction has been largely theoretical. That is until recently, when a small number of high-profile investment disputes has drawn attention to the interaction between national IP regimes and the international investment system. Christophe Geiger brought together experts from the worlds of IP and trade and investment law to explore the many questions that the interplay between these two conceptually very different systems raise. The Research Handbook on Intellectual Property and Investment Law addresses this evolving relationship in two parts. First of all, it analyses the systemic interaction between investment law and IP law in its national and international dimensions. Within the first part, one section addresses the protection of IP in trade and investment treaties, and another discusses the impact of investment protection on policy and regulatory autonomy. The section part begins with Henning Grosse Ruse-Khan, the author of an authoritative monograph on IP protection in international law, who sets the scene by outlining the elements of IP protection in trade and investment agreements. He notes opposing trends in international IP treaties and international investment agreements. Whereas the former limit the scope of national regulatory powers, the latter seem to grant Member States greater policy space. These opposing trends are further analysed by Susy Frankel who contrasts the object and purpose of IP and investment protection in treaties that protect both. The fundamental question of whether IP is protected as an investment and therefore falls within the scope of protection of investment law in the first place is addressed by Ruth Okediji and Carlos Correa. Both discuss the conditions for protection and how the scope of protection should be defined in order to retain policy space for states and to avoid abusive investor claims. The other chapters discuss the fundamental protection standards of international investment agreements (national treatment, most favoured nation and fair and equitable treatment) as applied to IP. Three chapters in the second section return to the question of national autonomy. They address issues raised by recent investment cases that involved IP claims. While Cynthia Ho argues that investor–state arbitration might have negative aspects on TRIPS flexibilities, Simon Klopschinski and Daniel Gervais focus on the notion of public policy in an investment context and how investment tribunals should approach this notion.

Natural Monopolies in Antitrust, Patent, and Copyright Law: The Essential Facilities, Reverse Doctrine of Equivalents, and Originality Doctrines as Triggers for a Compulsory Licensing Remedy

Economic growth depends in large part on technological change. Laws governing intellectual property rights protect inventors from competition in order to create incentives for them to innovate. Antitrust laws constrain how a monopolist can act in order to maintain its monopoly in an attempt to foster competition. There is a fundamental tension between these two different types of laws. Attempts to adapt static antitrust analysis to a setting of dynamic R&D competition through the use of "innovation markets" are likely to lead to error. Applying standard antitrust doctrines such as typing and exclusivity to R&D settings is likely to be complicated. Only detailed study of the industry of concern has the possibility of uncovering reliable relationships between innovation and industry behavior. One important form of competition, especially in certain network industries, is between open and closed systems. We present an example to illustrate how there is a tendency for systems to close even though an open system is socially more desirable. Rather than trying to use the antitrust laws to attack the maintenance of closed systems, an alternative approach would be to use intellectual property laws and regulations to promote open systems and the standard-setting organizations that they require. Optimal policy toward R&D requires coordination between the antitrust and intellectual property laws.

In recent years, innovation has been threatened by the United States legal system. Much of the blame can be attributed to the antitrust and intellectual property (IP) laws. This book seeks to encourage a reversal of this trend, offering ten revolutionary proposals, from pharmaceuticals to peer-to-peer software, to help foster innovation. The book illustrates the benefits of improving the patent system and incorporating innovation into copyright and antitrust law. It also dips into a rich business literature to import ideas on “disruptive innovation” and “user innovation.” The book replaces the 20th-century view that the IP and antitrust laws are in conflict with a new 21st-century framework that treats them as collaborators. It also offers a comprehensive framework for the patent, copyright, and antitrust laws to promote innovation.

Introduction The purpose of this chapter is to present an economic analysis of intellectual property right (IPR) law and its relationship with competition policy. The relevant economic literature on this subject is enormous and complex. Here, we will strive for simplicity, trying to extract the main concepts and proposing simple principles that might help to guide the application and design of both intellectual property and antitrust laws. While our analysis does not account for every single aspect of intellectual property law or every single competitive situation, we do believe that the analysis does derive useful general principles. The overriding thesis of this chapter will be the separation of intellectual property and competition law. This separation will apply to the design of the law: IP law should limit itself to properly assigning and defending property rights while competition law should be concerned with the use of such property rights. More precisely, competition law should be concerned only with the use and abuse of property rights that are sources of monopoly power. This principle of separation also applies to the enforcement of the law. The main theme here is the equality of treatment of various sources of monopoly power, i.e. of the use of various property rights. We will argue that once property rights of various types have been properly assigned, there is no reason for competition policy to further distinguish between the sources of monopoly power.

The Precompetitive Interest in Intellectual Property Law

ABOUT THE AUTHORS

Contemporary Intellectual Property: Law and Policy, fifth edition, offers a unique perspective on intellectual property (IP) law, unrivalled amongst IP textbooks. An accessible introduction to IP law, it provides not only a comprehensive account of the substantive law, but also discusses the overarching policies directing the legal decision-making, as well as areas for further debate. Intellectual property law is an increasingly global subject, and the book introduces the relevant European and international dimensions to present a realistic view of the law as it actually operates. It explores IP law as an organic discipline, evaluating the success with which it has responded to new challenges. Images and diagrams, with analysis of key cases and key extracts, are all incorporated alongside the author commentary to clearly illustrate the core principles in IP law. Exercise, questions, and discussion points are provided to help the reader to engage with the material, and additional material is provided in the Online Resources. Beyond providing an up-to-date account of IP law, the text examines the complex policies that inform modern IP law at the domestic (including Scottish), European, and international levels, giving the reader a true insight into the discipline and the shape of things to come. The focus is on contemporary challenges to IP law and policy, and the reader is encouraged to engage critically with the text and the subject matter. The book has been carefully developed to ensure that the complexities of the subject are addressed in a clear and approachable way.

This paper provides an overview of the efforts of the European Commission to identify and, when necessary, challenge anticompetitive behaviour with respect to standardization and the licensing of standardized technologies, as well as the case-law of the CJEU on the same subject. The paper starts by discussing the 1992 Communication on Intellectual Property Rights and Standardization, which was the first important contribution of the Commission on the complex interface between standardization, intellectual property and competition law. It then analyses the first major investigations that the Commission made into the licensing conduct of SEP holders, i.e. the proceedings against Rambus and Qualcomm. Next, it discusses the 2010 Commission Guidelines on horizontal cooperation agreements, which contain a chapter dedicated to the application of EU competition rules to standardization agreements. The paper then examines how the Commission has dealt with mergers involving firms holding large SEP portfolios, such as its Google/MMI and Microsoft/Nokia decisions respectively adopted in 2012 and 2013. The paper also analyses the Commission decisions of 2014 against Motorola and Samsung regarding the use of injunctions by SEP holders to enforce their patents against standard implementers. It also analyses the Huawei v. ZTE judgment adopted by the CJEU in 2015, in which the CJEU was asked to determine the circumstances in which SEP holders could seek injunctions against standard implementers without breaching Article 102 TFEU. The paper then discusses several forms of licensing or litigation conduct, which can be problematic under EU competition law, but which have not yet been dealt with by the EU courts or the Commission. Finally, the paper concludes.

European Union Competition Law, Intellectual Property Law and Standardization

Antitrust, Dominant Firms, and Public Policy Problems: A Framework for Maximizing Success by Minimizing Uncertainty