Friday, February 21, 2014
Urska Petrovcic, European University Institute has written on Patent Hold-Up and the Limits of Competition Law: A Trans-Atlantic Perspective.
ABSTRACT: The problem of patent hold-up is currently one of the most discussed antitrust topics in the European Union and in the United States. On both sides of the Atlantic, competition authorities addressed the opportunistic conduct of patent owners through the provisions of competition law. The reach such provisions have in addressing the patent owner’s opportunistic licensing practices remains however unclear. The present article brings some clarity to this picture by analyzing the applicability of the antitrust provisions to cases of patent hold up. The analysis shows that the provisions of the two jurisdictions have different scopes when addressing these cases. Whereas in the EU, the European Commission might be able to address a large specter of patent owners’ opportunistic licensing practices, most conducts would escape the liability under US antitrust law. The divergent outcomes are however not attributable to the application of different legal tests, or different views of the competition authorities. Rather the contrary. Competition authorities share the concerns on patent hold up, but are unable to reach similar outcomes because of the divergent prohibitions embodied in the antitrust provisions of the two jurisdictions. The analysis also shows that in neither of the systems does competition law provide a definitive solution to the problem of patent hold-up.