The Path to Innovation: An Amalgamation of Patent Law and the Dynamic Competition Regime

The Interface of Competition and Intellectual Property Law – Taking Stock and Identifying New Challenges

Innovation is central to competition policy. Indeed, in some industries, it is the primary means by which firms compete. The metaphors are dramatic: innovation is a ‘life and death matter for the firm’ and ‘a weapon in the arms race of competition’. Even more fundamentally, innovation, economists tell us, is pivotal to the capitalist economy as a whole. Baumol, in his book on innovation, declares that it is innovation that drives economic growth and that, without it, economies stagnate. Despite the well-established role of innovation in competition law and policy, however, the contribution such a perspective brings to the particular innovation issues raised in Gray’s case, the subject of discussion in other chapters, is limited. A contest between an employer and employee for intellectual property rights to an invention has clearer implications for labour, intellectual property and corporate law. The response of competition law to this issue, it seems to me, is far less clear. In broad terms, competition law and policy is concerned with the promotion of competition or, putting it in the more negative terms of competition legislation, prohibiting conduct that lessens competition.5 With this focus, competition law would seem to have little interest, in a general sense, in whether intellectual property rights are granted to an employer or an employee. It is true that there is a well-established interface between competition and intellectual property laws and, in a broad sense, some of this interaction may be relevant. This is because competition law, like intellectual property law, sees innovation as one of its key aims.

It is indicated that each state must ensure fair competition in its market in order to support economic growth. This provision is also relevant for the European Union, within which the primary importance is to ensure free competition for the further development of a single system of circulation of goods, works and services, promotion of innovation and creativity, job creation and increased competitiveness, as all this is necessary for the EU to compete in global economy. This article provides a general analysis of the correlation and interaction between the provisions of intellectual property law and the provisions of competition law in the European Union (EU). In particular, the author examines the peculiarities of legal regulation of economic competition and intellectual property protection at the EU level, the state of compliance with EU competition law in the process of exercising and protecting intellectual property rights, and the role of court decisions in determining the balance between intellectual property protection and competition law requirements. The author emphasises that despite different objectives, competition law and intellectual property law have a common basis and therefore actively interact, i.e. these two systems are synergistic. The author analyses possible options for the relationship between protection against unfair competition and intellectual property laws, including the means that would reduce the often existing «tension» between them. Due to the need for a common regulatory framework to ensure that laws are in line with dynamic trade practices, the EU’s unfair competition laws are mostly flexible and general in nature. The author identifies the measures currently being taken by the EU to optimise the rules in this area. The author concludes that intellectual property protection, as well as effective antitrust regulation, are the most important legal mechanisms created to ensure economic growth based on the development and expanded use of innovations. The author also examines the measures currently being taken by the EU to optimize the rules in this area. It is concluded that the general trend of further development and improvement of interaction between antitrust and intellectual property legislation in the EU should be, first of all, overcoming regulatory and institutional dispersion.

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.

Technology Protection and Competition Policy for the Information Economy. From Property Rights for Competition to Competition Without Proper Rights?

The interaction between artificial intelligence and intellectual property rights (IPRs) is one of the key areas of development in intellectual property law. After much, albeit selective, debate, it seems to be gaining increasing practical relevance through intense AI-related market activity, an initial set of case law on the matter, and policy initiatives by international organizations and lawmakers. Against this background, Zurich University’s Center for Intellectual Property and Competition Law is conducting, together with the Swiss Intellectual Property Institute, a research and policy project that explores the future of intellectual property law in an AI context. This paper briefly describes the AI/IP Research Project and presents an initial set of policy recommendations for the development of IP law with a view to AI. The recommendations address topics such as AI inventorship in patent law; AI authorship in copyright law; the need for sui generis rights to protect innovative AI output; rules for the allocation of AI-related IPRs; IP protection carve-outs in order to facilitate AI system development, training, and testing; the use of AI tools by IP offices; and suitable software protection and data usage regimes.

It is generally viewed that Intellectual property protection and competition law are odds with each other. Is there really any tussle between intellectual property protection and competition law? Intellectual property law creates and protects monopoly power and the other seeks to exclude it. IP exclusion provisions are included in the Indian Competition Act, 2002 in Section 3(5). This is to provide enforcement to intellectual property rights. But protection of intellectual property rights are not per se violates any competition provisions. The objective of competition law is to prohibit anti-competitive practices and the objective of both the stream is wealth maximization in any economy. Intellectual property protection is necessary to foster innovation and choices of products in the market. It infuses efficiency in the market and increases consumer welfare. India is in the nascent state of its administration of competition laws. There are sizable number of cases came before the Indian competition authorities (CCI) and Indian courts. Cases against Microsoft India and abuse of dominant case against Ericsson filed by an Indian company named Micromax is only the beginning of the interface cases on intellectual property and competition law. There is no sufficient case laws and jurisprudence is available in India in guiding the Indian authorities and courts on the interface between intellectual property and competition. It is necessary to make an analysis of the jurisprudence in the US and EU. First part of this paper deals with the US Antitrust Act, 1890 and analysis of a number of cases dealt by the US courts. The EU Regulations and cases are clearer on issues of intellectual property and competition law. Indian jurisprudence is not clear so far and few cases are dealt by the CCI and Indian courts. The study concludes that Indian authorities should learn from other jurisdictions and the jurisprudence will act as guideline for Indian authorities.

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.

IP Law Reform and the Treaty of Lisbon

Unchecked, competition and IP law can get on like a house on fire—both will rage fiercely, and nothing will be left at the end. Each is a threat to the principles on which the other was founded: in the short term, competition law tends to protect consumers or weaker parties, whereas patents aim to convey their own exclusivity and market power—and, ultimately, to create a dominant position. Perhaps the reason for this disparity is the constraint of their long-term goals: the broader aims of competition law are economic, while IP exists to promote technical and creative development. Where they meet, competition and IP smash. As Alan Devlin notes in this book, for competition lawyers ‘patents create unique issues … [e]ven antitrust’s normative enquiry becomes unsettled in the patent setting. When static and dynamic effects point in different directions, where is true north?’ First and foremost, Antitrust and Patent Law is not a text about intellectual property law itself. It is about competition law, bearing on patents as its subject matter, and is concerned less with patents themselves and more with how the rights are used, enforced, bought, sold and abused.

Chinese Intellectual Property and Technology Transfer Law by Professor Zheng Chengsi with Michael D. Pendleton. Published by Sweet & Maxwell, London (1987, xli and 331 pp. incl. Preface, Tables of Contents, Statutes, Regulations, Rules, Circulars, Treaties and Index ). Hardback. Price £50 (UK). Intellectual property law academics and practitioners alike have found great difficulties in tackling the application of their subject within the People's Republic of China. While the practice in virtually every major economy in the world has been that intellectual property laws and competition laws have been introduced in order to modify, control and promote various aspects of existing commercial practice, in China it is rather the other way round – the decision to implement intellectual property laws in statutory form was taken in advance of …

Recent case law and enforcement activities in China have begun to shed light on the approach of Chinese courts and competition authorities towards the application of competition law to issues involving intellectual property rights. This article considers these developments against the backdrop of the prevailing European and US practices, with particular focus on standard essential patents and how they relate to the issues of: (i) compulsory licensing; (ii) use of injunctive relief to enforce standard essential patents; (iii) how a FRAND royalty rate should be determined; and (iv) tying or bundling of licences. Although some of the principles applied by the Chinese courts and authorities are broadly in line with those adopted in the European Union and the US, the lack of a clear approach in areas such as compulsory licensing, the concept of ‘willing licensee’ and the determination of FRAND rates serves as a reminder that the regulation of competition and intellectual property laws in China is a comparatively recent endeavour and continues to evolve. The article concludes with a summary of competition enforcement activities in other areas of intellectual property rights and the lessons that businesses should be aware of in China.

For decades, the debate about the tension between IP and antitrust law has revolved around the question to what extent antitrust should accept that IP laws may bar competition in order to stimulate innovation. The rise of IP rights in recent years has highlighted the problem that IP may also impede innovation, if research for new technologies or the marketing of new products requires access to protected prior innovation. How this ‘cumulative innovation’ is actually accounted for under IP and antitrust laws in the EU and the US, and how it could alternatively be dealt with, are the central questions addressed in this unique study by lawyer and economist Thorsten Käseberg.

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