Article 82 EC as Remedy to Patent System Imperfections : Fighting Fire with Fire?

Article 82 EC as Remedy to Patent System Imperfections : Fighting Fire with Fire?

Journal article

1 volume ([26] pages) ; [28] cm.

CH 37

It has been a well-established principle of EC competition law that there is no inherent conflict between competition laws and intellectual property laws. However, there are indications that this view is coming under pressure. The European Commission’s pharmaceutical sector inquiry has identified a toolbox of practices engaged in by originator firms, which allegedly aims at hindering or delaying generic entry or competition from other originators. A number of these practices involve the strategic use of patents. As sector inquiries aim at giving effect to Articles 81 and 82 EC, the Commission’s preliminary findings raise the question whether strategic patenting engaged in by dominant firms is caught by Article 82 EC and, if so, in what circumstances. This article discusses these questions in light of the existing case law on the application of Article 82 EC to refusals to license intellectual property rights, in particular the Microsoft case, which has extended this case law to patents. The article discusses in particular whether practices involving patent clustering, secondary patenting, and defensive patenting may be caught by Article 82 EC.

[Place of publication not identified] : [Kluwer Law International (Alphen aan den Rijn, Países Bajos)], 2009.

eng