IP-Antitrust in Context: Approaches to International Rules on Restrictive Uses of Intellectual Property Rights

• DOI: 10.1177/0003603X0304800401
• Published date: 01 December 2003
• Date: 01 December 2003
• Author: Hanns Ullrich
• Subject Matter: Symposium: Global Antitrust Law and PolicyPart V: Competition Policy and Intellectual Property around the Globe

The Antitrust BulletinlWinter 2003

IP-antitrust in context: approaches

to international rules on restrictive

uses

of

intellectual property rights

BY HANNS ULLRICH*

I.

Introduction

837

The subject

of

this session, Intellectual Property and Competition Law

Around the Globe, invites us to compare the various national competition

laws on the intellectual property/antitrust interface, and to thinkabout rules

regarding this interface that might be developedone day to cover the entire

globe-a

global antitrust law and policy on the matter.The purpose of my

article, however, is much more limited. For a few years the interpretation

and the application of the competition rules of the treaty establishing the

European Community! are undergoing aprofound change in almost all

areas, including most recently that of patent-antitrust law.This change, by

way of some sort of mimeticism, seems to bring Community competition

law ever closer to U.S. understanding and enforcement

of

the antitrust

laws. Such convergence raises the question whether national---or, for that

*Universitat der Bundeswehr Miinchen.

EDITOR'S NOTE: The following footnotes are as they appeared in the origi-

nal manuscript.

Art. 81 et seq. EC-Treaty as amended and codified by the Amster-

dam Treaty on

the

European Union

of

October 2, 1997,

OlEC

1997 C

340,1

=37

Int'!

Leg, Mat. 56 (1998),

©2004 by Federal Legal Publications,Inc.

838

The antitrust bulletin

matter,

regional-competition

law will, by way of soft, unilateral

harmonizationdevelop into a commonlaw of antitrust.2

While this general question is to be discussed at another session of

this symposium, my task is to present and explain this European

development in an international perspective. I choose the international

rather than a comparative perspective, because, whatever convergence

of

the U.S. and the EU concepts of intellectual property-related

competition policy may develop, in order to form the basis for the

establishment of globally applicable competition rules, it must take a

direction that is acceptable worldwide. It is precisely in this respect

that the interface between competition law and intellectual property

has a particularity, which is that, to the difference of almost all other

areas of competition law, there exists already some small nucleus of

an international system of competition law, namely articles 8(2) and

40 of the WTO Agreement on Trade-Related Aspects of Intellectual

Property Rights (TRIPS Agreement). The question, therefore, is how

U.S.-EU convergence toward internationally common concepts of

competition law in this area relates to the standards set by the TRIPS

Agreement on the basis of public international law.

These then are the two strands that I shall

try

to bring together: the

development of EU competition law in the area of intellectual property

protection toward an international harmonization

of

concepts of

competition law, and the-surprisingly antagonistic-establishment of

a few rules of the TRIPS Agreement on the matter as a globally

recognized

framework for

national-rather

than

international-

intellectual property rights-related competition rules. For this purpose I

shall limit my examination to technology-related intellectual property

rights (lPR),3 because it is with respect to these rights that EU

Compo

First,

Towards

an

International

Common

Law

of

Competition,

in Zach (ed.), Towards

WTO

Competition Rules, Berne

1999, 95, 104 et seq.

Inventions

as

protected

by

patents

or

utility

models,

design

protection,

plant variety rights, copyright for computer programs and

databases,

trade

secret

protection

for

technological

know

how,

semiconductor chip protection; see also Art. 8 EU-Commission Regulation

240/96

of

January 31, 1996 on the application of Art .85 (3) EC-Treaty to

certain categories of technology transfer agreements, OJEC 1996 L 31, 2.

IP-antitrust 839

competition law is about to change fundamentally, and to restrictive

agreements on the exploitation of these rights, because the control over

the

abusive

exercise

of

intellectual

property

rights

by

market

dominating enterprises

follows-or

should

follow-general

principles

of competition law anyway, rather than any IPR-specific concepts.'

II. The changing community context

A. Industrial property-related competition policy

for

market

integration

1. LEGAL CONSTRAINTS OF POLICY DEVELOPMENT When, in the early

years, the

Commission

set

out

to

implement

and to enforce the

competition

rules

of

the then

Treaty

Establishing

the

European

Economic Community, it

did

not

find

itself

in the

comfortable

position

of

U.S. authorities and courts, which, on the basis of a catch-

all prohibition

of

"contracts or conspiracies in restraint of trade"

(Sherman Act section 1) could develop, within the flexible framework

of judicial precedent, whatever competition policy the sociopolitical

situation,

as

well

as

economic

thought

and

theory

of

the

time

suggested to be generally acceptable as a matter of law. Rather it was

subject to several legal constraints. The most important probably was

that article 85 of the treaty (now article 81), which covers restrictive

agreements

and

concerted

practices,

is

formulated

as a

principle/exception rule, or at least it has been so understood by

virtually all writers and the courts ever since the ruling, which the

Court

of

Justice of the European Communities gave in the Bosch

case.' Principle/exception did not necessarily mean broad prohibition

4See

.1l.llJ;kh

in Immenga, Mestmacker (ed.), EG-Wettbewerbsrecht,

Munich 1997 ,1250 et seq.; Heinemann, Immaterialgiiterschutz in der

Wettbewerbsordnung, Tiibingen 2002, 441 et seq., 453 et seq.; as to US-

law

see

Sullivan.

Grimes,

The

Law

of

Antitrust

- An

Integrated

Handbook, St Paul, Minn. 2000, 842 et seq.

See CJEC of April 6, 1962, case 13/61, de Geus/Bosch, Rep. 1962,

97; and of April 30, 1986, cases 209-213/84, Ministere public/Asjes, Rep.

1986 I 1425 (No. 60 et seq., - e contrario! -); for a precise characterization

of

the

principle/exception-rule

CJEC

of

July

13,

1966,

case

32/65

Italy/Council, Rep. 1966, 457, 483; however, as of recent the matter has