Patent Application: Obstacle for Innovation and Abuse of Dominant Position under Article 102 TFEU?

Posted by D. Daniel Sokol

Joseph Straus (Professor of Law University of Ljubljana, and Munich) asks Patent Application: Obstacle for Innovation and Abuse of Dominant Position under Article 102 TFEU?

ABSTRACT: The Commission has recently acted under Article 102 TFEU (ex Article 82 EC) against firms filing patent applications. In this article, it is challenged whether these actions have any legal basis in EC law. It is also argued that they ignore principles established in intellectual property statutory and case law of the EU Member States as evidenced, for instance, by German statutes and jurisprudence. References to US law also demonstrate that there are no such precedents in the USA. It is further explained how the patent system balances the interests of patentees, on the one hand, and the public at large, on the other hand, before and after patent is granted by providing for research exemptions and compulsory licences, thus securing that neither patent applications nor patents can constitute an obstacle to innovation.