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Competition Law Assignment

   

Added on  2020-05-11

14 Pages3812 Words82 Views
Competition LawIn light of the above, examine how competition law has regulated intellectual propertyrights.

ContentsIntroduction.................................................................................................................................................3Competition issues......................................................................................................................................4Article 101 TFEU..........................................................................................................................................6Impact of Recent Decisions.........................................................................................................................7Exclusionary Powers....................................................................................................................................9Conclusion.................................................................................................................................................12

Introduction: For the purpose of rewarding and encouraging investment and innovation, theowners of interchangeable property exclusive exploitation rights are given to the owners by theintellectual property law. Therefore, the owners of intellectual property have, in principle, theright to keep control over the access to their intellectual property and also to pursue theenforcement of these rights by the courts, whenever there is an unauthorized use of suchintellectual property has taken place (Schmidt, 2009). But at the same time, there can be certainsituations where exercising the intellectual property rights may result against the requirements ofcompetition law, which generally speaking, the purpose of promoting open markets and to forbidthe abuse of market power and in context of the European Union, to make sure that theintegration and the integrity of single market is ensured by removing the barriers present incross-border trade (Carrier, 2003).There has been a historical difference present regarding the way in which the European Unionand the USA have dealt with the issues related with competition law and the protection of IPrights. Historically, there is the contrast present between the sequences in which these two legalsubjects became the creatures of central legislation (Carrier, 2011). For example, the power wasgranted to the federal Congress by the US Constitution of 1787 according to which it was goingto "promote the progress of science and useful arts, by securing the right over their respectivewritings and discoveries for limited times to authors and inventors. However, the federalcompetition law was left to be asserted a century later. This was done not through constitutionalamendment, but by implying the power of the Congress which require it "to regulate commercewith foreign nations and among different states and with Indian tribes". The Rome Treaty of1927 has resulted in the creation of supra-national competition rules that were implemented by

European Community legislation, but did not grant central authority to create the intellectualproperty rights (Ellig and Lin, 2011). It was stated that the protection of industrial andcommercial property as the qualified exception to the prohibition of restrictions on the importsand exports taking place between different member states of the European Union.As a result, each Member State of the E.C. had legislative power over its domestic intellectualproperty legislation, but it was subject to the authority of E.C. Council to direct "approximationof such legislations, as directly impacted by the establishment on the functioning of the commonmarket". Until 1996, the approximation efforts could not succeed in achieving a functional supra-national EC trademark and the creation of the supra-national is still waiting for ratification by allthe Member States of the Community Patent Convention, 1975 (Gilbert and Sunshine, 1995).Competition issues: Generally technology licensing is considered as a pro-competitiveactivity as this activity results in increased efficiencies by strengthening the incentives toinnovation and increased involvement in research and development initiatives and at the sametime. It also reduces duplication in these activities. Apart from it, the technology licensing alsoencourages the development of technology and know-how (as it increases the number of usersand suppliers), and generally it also increases the product market competition (Evans andSchmalensee, 2001). But at the same time, and despite the positive views regarding technologylicensing, there had been arrangements related with the transfer of intellectual property rights(especially their competitors are involved). That may have a negative impact for competition,especially in cases where the arrangements made directly or indirectly result in price-fixing,sharing, partitioning, output limitations, and/or the foreclosure of markets (Pleatsikas and Teece,2001).

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