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Two Bodies of Law Separated by a Common Mission: Unilateral Conduct By Dominant Firms at the IP/Antitrust Intersection in the EU and the US

by Jay L. Himes, Amedeo Arena, and Bettina Bergmann
European Competition Journal |

It is frequently said that "[t]he goals of the intellectual property and antitrust laws are complementary, not inconsistent."1 Both antitrust law and intellectual property (IP) law seek, in the end, to protect the public interest in realizing "optimum prices, quantity and quality of goods and services . . . ."2 IP law, however, comes at this end-objective by recognizing restrictions on the availability of IP over a "short" term as a means to encourage innovation and investment in developing new products. Antitrust law, instead, strives to keep markets open and may, accordingly, restrict certain forms of exercise of IP rights (IPRs) by dominant firms.

Thus, in both the United States (US) and the European Union (EU) conduct by a firm enjoying market power can give rise to tensions between IP law and antitrust law. Antitrust law can reach: (1) a failure to license IPRs to competitors (refusal to license); (2) doing so at unreasonable rates (excessive royalties); (3) the acquisition of IPRs through misleading representations to public authorities (patent fraud); (4) the exploitation of regulatory procedures involving IPRs to erect barriers to exclude competitors (misuse of regulatory procedures); and (5) the failure to disclose IPRs that are essential to implementing a standard adopted by Standard Setting Organization (SSO) or to license those rights on fair, reasonable, and non-discriminatory (FRAND) terms (deception of SSOs).

This paper addresses treatment of these five instances of interaction between antitrust and IPRs under EU (part I) and US law (part II). We compare the different solutions in each jurisdiction and outline factors that may account for them.

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