Are Article 82 EC and Intellectual Property Interoperable? The State of the Law Pending the Judgment in Microsoft v EC

Interoperability, Intellectual Property and Competition Policy and Antitrust

Article Snapshot

Author(s)

Maurits Dolmans, Paul-John Loewenthal and Robert O'Donoghue

Source

Competition Policy International, Vol. 3, No. 1, Spring 2007

Summary

This paper asks how competition law affects intellectual property rights in Europe.

Policy Relevance

Requiring firms to share assets is done only in rare cases, to prevent discouraging firms from innovating. Just because the law secures IP rights does not mean that firms can use IP assets to harm competition.

Main Points

  • In the United States, courts can require firms to share assets with rivals in antitrust cases involving “essential facilities,” which influenced European law. In Europe, Article 82 limits actions by dominant firms in exceptional cases.
    • Cases involve raw materials, transport, car part designs, copyrighted media listings, and copyrighted database structure.

  • EU cases explain that IP assets must be shared if a refusal to license stops the emergence of a new product, is unjustified, and would block competition. Showing this requires no further proof of harm to consumers.

  • In the Microsoft case, the European Commission (EC) focused on Microsoft’s usual power, harm to innovation, and Microsoft’s lack of reasons for its acts. There were also other abuses in addition to the refusal.

  • Microsoft’s rivals would not need access to the IP if they used their engineers to figure out how Microsoft code worked, but this did not matter, because reverse engineering code is slow, expensive, and easily foiled if Microsoft changed the code.

  • Requiring a firm to share assets is difficult because no one knows what price the firm should charge. Looking at the firm’s costs or profits, or asking what would be charged for a similar license is a start.

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