The interplay between antitrust law and intellectual property: stages of the European evolution

Abstract

The interplay is reconstructed in an evolutionary perspective along three main stages. In the first one, Commission focused on IPRs holders’ power of disposition in order to prevent that profiting from the statutory ‘territorial scope’ of national exclusive rights, agreements were enacted partitioning the European market thus frustrating the goal of the Single Market. In the second phase, in order to avoid monopolization of top-level innovation, the statutory excludent power itself of holders of patents and copyrights on non-workably substitutable (thus ‘essential’) innovative solutions—and also holders of a dominant position—was tempered by a duty to grant access, on FRAND terms, to competitors willing licensees. In the third stage, in order to clear the market from ‘unworthy’ IPRs, thus ensuring a fairly competitive playing field, the attention focused on the acquisition itself of IPR entitlement and various forms of its anticompetitive misuse.