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Refusal to license intellectual property law: In conflict with the EC competition rules?
Örebro University, School of Law, Psychology and Social Work.
2009 (English)Independent thesis Advanced level (degree of Master (One Year)), 10 credits / 15 HE creditsStudent thesis
Abstract [en]

The purpose of this thesis is to look at the case law from the European Court of Justice (ECJ or the Court), Court of First Instance (CFI) and Decisions from the European Commission to see how they have handled refusals from different undertakings to license intellectual property rights and the connection of the refusals to license and Article 82 in the EC Treaty. The purpose is also to see if this compulsory licensing tells us something about the relationship between these two fields of law in the European Union. The topic is very up to date as the standings throughout case law have differed widely and a way of handling cases of this kind might be spotted for the future. When it comes to intellectual property rights, the main function of being an intellectual property owner is that you have a monopoly on the market for your product or service. At first glance the aims of intellectual property law and competition law is therefore conflicting, but can also be seen as reaching for the same goals in their way of promoting innovation and economic growth. The methods they use for fulfilling these goals are however widely different. To set the balance between intellectual property law and competition law, the ECJ, the CFI and the European Commission have in their case law set out circumstances under which a refusal to license intellectual property law is considered an abuse of dominant position. Throughout case law the exceptional circumstances and the questions surrounding them has changed drastically with every case. It started out cautiously with the Volvo and Magill cases, where a list of exceptional circumstances where formulated, followed by Ladbroke and Bronner which emphasized on the importance of bringing in the essential facilities doctrine into the equation. The cases consistently have different approaches on whether the exceptional circumstances where cumulative or not. In the latest cases, IMS health and the Microsoft Decision, a new way of addressing the conflict has been shown as they aim for a new economic and efficiency based approach. In the future exceptional circumstances among with the whole refusal to license area have a strong need to be clarified by the Courts. As it has been throughout the years with different interpretations in every case, legal certainty on the area is threatened. The economic based approach can play in favor of both intellectual property law and competition law as it favors the incentives to innovate, which is the common denominator for the two fields of law.

Place, publisher, year, edition, pages
2009. , p. 45
Keyword [en]
intellectual property law, European competition law, refusal to license
National Category
Law (excluding Law and Society) Law and Society
Identifiers
URN: urn:nbn:se:oru:diva-9441ISRN: ORU-JPS/RÄT-AG-2010/0022--SEOAI: oai:DiVA.org:oru-9441DiVA: diva2:290871
Presentation
(English)
Uppsok
Social and Behavioural Science, Law
Supervisors
Examiners
Available from: 2010-06-22 Created: 2010-01-28 Last updated: 2017-10-18Bibliographically approved

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