Tuesday, February 5, 2008
Posted by D. Daniel Sokol
ABSTRACT: The judgment of the European Court of First Instance in Microsoft raises several issues. In this article, we will look in particular at the main findings regarding the two abuses (refusals to license and product integration).
Under the applicable case law before Microsoft (i.e., the IMS Health and Magill judgments), the refusal by a dominant undertaking to allow access to a product protected by intellectual property rights (IPR) was regarded as abusive only in exceptional circumstances, where three conditions were met:
It is essentially with regard to this third condition, the “new product” condition, that the Microsoft judgment introduces significant changes to the existing case law.