Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Friday, June 15, 2007

More on the Antitrust/IP Interface- This Time in Europe

Posted by D. Daniel Sokol

While we wait for the Microsoft ruling in the EU, a team from Cleary Gottlieb in Brussels asks Are Article 82 EC and Intellectual Property Interoperable? The State of the Law Pending the Judgment in Microsoft v. Commission in the latest issue of Competition Policy International.

ABSTRACT: The objectives of intellectual property rights (IPR) and competition law are essentially the same: both promote innovation to the benefit of consumers. IPRs are, however blunt instruments that strike the right balance in general, but in exceptional individual situations may not achieve (and may sometimes even obstruct) the innovation policy goal. Competition law is a useful tool to redress the balance in these situations, and the European Commission and EC courts have recognized that in exceptional cases the exercise of IPRs may infringe competition law. This article examines the extent to which Article 82 EC restricts the use of IPRs, pending the judgment of the CFI in Case T-201/04, Microsoft v. Commission.

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On the one hand, they are "a team from Cleary . . . ." On the other hand, they are a team representing a group of parties with a strong, and strongly-adverse-to-Microsoft, interest in the case. Perhaps more relevant (and not, it seems to me, fully disclosed in the * footnote to the article), they are a team representing a group that has filed a complaint with the EC against Microsoft. See this article, for example, for details. Not that they can't be both advocates and be right. I'm just saying, is all.

Posted by: geoff | Jun 15, 2007 9:22:33 AM

Geoff is exactly right. Indeed, Cleary (and, in particular, Maurits Dolmans, one of these authors) also represents Nokia, Texas Instruments and Broadcom in their efforts to use complaints to the EC to get better licensing terms from Qualcomm, where they are undoubtedly advancing similar arguments. And this interest is not at all disclosed in the article.

Posted by: deatqe | Jun 15, 2007 11:23:34 AM

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