Cover

Half-title

Title

Copyright

Contents

Notes on Contributors

Preface

The competition law/IP 'interface’: an introductory note

I. Introduction

II. A note on the compatibilities between the two systems of legal regulation

III. The changing nature of the interface between the exercise of IPRs and competition policy in the major competition law systems

IV. The relevant principles of IP law and innovation

A. Patent laws

B. Copyright laws

C. The limits of the patent and copyright internal balance

Notes

PART I Intellectual property rights and competition law in the major trading blocks

2 EC competition policy and IPRs

I. Introduction

II. Article 82 and IPRs

A. Introduction

B. Dominance, relevant market and IPRs

1. The determination of the relevant market

2. The concept of dominance under Article 82 and IPRs

C. The concept of abuse under Article 82

1. The concept generally

2. Excessive pricing and IPRs

3. The abuse of refusal to supply: Article 82(b)

4. Tie-ins (Article 82(d))

III. Article 81 and agreements between firms

A. Article 81 generally

1. Introduction

2. Exemption under Article 81(3)

IV. IP licensing and competition law

A. Introduction and background

B. The evolution of the regulatory framework for IP licensing in the EC

C. The main features of the new Technology Transfer Regulation and Guidelines

1. The scope and duration of the Regulation

2. The distinction between 'horizontal' and 'vertical' licensing agreements

3. The market share limits

4. The hard core restrictions

5. The new methods of assessing individual restraints in licensing agreements outside the safe harbour of the TTBER

6. Licensing agreements between non-competitors

7. Licensing agreements between competitors

V. Remedies

A. Article 82

B. Article 81

C. Mergers

VI. Conclusion

Notes

3 Competition policy and its implications for intellectual property rights in the United States

Introduction: innovation and competition

I. US intellectual property rights and innovation: the competition policies within

A. The purposes of intellectual property rights

B. Constitutional origins: copyright and patent protection

1. Patent protection and competition policy

2. Copyright protection and competition policy

C. Common law origins: trademarks and trade secrets

1. Trade secrets and competition policy

2. Competition policy and protection of trade marks and trade names

II. Overview: US antitrust law and innovation

A. Antitrust economics

B. The antitrust statutes in historical context

C. Judicial interpretation of the statutes

D. The regulatory agencies

E. Agency guidelines

A note on extra-territorial reach

III. The impact of antitrust on intellectual property rights

A. Framework: judicial and regulatory approaches

1. The courts: antitrust scrutiny of intellectual property rights

2. Guidelines for the licensing of intellectual property (1995)

B. Transactional analysis: antitrust scrutiny of intellectual property rights exploitation

1. Enforcement of intellectual property rights

2. Industry standardisation

3. Duty to license

4. Licensing of intellectual property

5. Unilateral acquisition of intellectual property rights

Appendix A: an overview of the Microsoft antitrust cases

Notes

4 The interface between competition law and intellectual property in Japan

I. General introduction

A. Purpose and outline of intellectual property laws

1. Industrial property and economic development

2. Purpose of industrial property laws

B. Purpose and outline of the Antimonopoly Act

1. History

2. Purpose and Outline of the Antimonopoly Act

II. Antitrust law and policy related to intellectual property rights

A. The exemption provision of section 21 AMA

1. The provision

2. The position of the legislature and the Fair Trade Commission

B. Guidelines of the Fair Trade Commission on licensing agreements

1. General remarks

2. Doctrinal approach on restrictions on patent and know-how licensing agreements

3. FTC Guidelines for Patent and Know-how Licensing Agreements

C. Guidelines of the Fair Trade Commission in research and development

D. Patent pools and cross-licensing schemes

E. Decisions of the Fair Trade Commission related to IP rights

1. Overview

2. Clauses meant to limit the free distribution of (exhausted) products

3. Post-contractual limitations

4. Restrictions in cross-licensing schemes

5. Patent pools

F. FTC's studies on intellectual property and competition policy

1. In general

2. Report of the study group on technical standards and competition policy, July 2001

3. Study group on software and the Antimonopoly Act, March 2002

4. Study group on patents and competition policy for new technical fields, June 2002

5. Study group on digital content and competition policy, March 2003

III. Competition policy in IP legislation

A. Copyrights, rental and lending of phonograms

B. Protection of investment by prohibiting slavish imitation

C. Compulsory licences for dependent inventions

IV. Competition policy through the interpretation of intellectual property rights

A. Interpretation of intellectual property rights unrelated to technology transfer agreements

1. Clinical trials and generic drugs

2. Cases related to parallel imports in order to stimulate domestic competition

3. The retail of software video games

4. Unjustified threats for alleged infringement of intellectual property rights

B. Decisions in connection with licensing or transfer agreements

1. Non-competition clauses and scope of patent rights

2. Restrictions on export

3. Implied guarantees as to the working of the licensed technology

4. Licences for certain acts of use

5. Obligations to use the licensed technology

V. The special case of exhaustion

A. Introduction

B. Patents

1. Legislation

2. Court decisions

C. Trade marks

1. Legislation

2. Court decisions

D. Copyrights

1. Legislation

2. Court decisions

E. Antitrust law

F. Customs regulations

1. Trade marks

2. Patent rights

Notes

PART II Intellectual property rights and competition law in smaller and medium sized open economies

5 Intellectual property rights and competition in Australia

I. Provisions in intellectual property statutes

A. Introduction

B. Compulsory licensing

1. Patents

2. Copyright

3. Designs

C. Parallel importation

D. Restrictions in patent licences

II. Framework of competition law

A. Scheme of the Australian Trade Practices Act

B. Provisions specific to intellectual property

Section 51(1)(a)

Section 51(3)

Limitations of section 51(3)

'Relates to'

Evaluation of the 'relates to' test in section 51(3)

III. Proposals for change to section 51(3)

A. National Competition Council (1999)

B. Intellectual Property and Competition Review Committee (2000)

1. Effect of IPCRC recommendation – the lessening of competition test

2. Efficiencies and the competition test

C. Government's response to IPCRC recommendation

IV. Application of competition law to intellectual property

A. Preliminary observations

B. Proceedings for infringement

C. Refusal to license

D. Pricing

High fees

Discriminatory pricing

E. Acquisition

F. Collective licensing

G. Joint research and development

H. Conditions in licences

1. General

2. Restrictions that carve up the property and/or give the licensee exclusivity

3. Pricing restrictions

4. Tying and bundling

V. Two lessons from Australian competition law

A. A statutory exemption for some dealings in intellectual property is not useful

B. The utility of guidelines depends on why? who? how?

Notes

6 Irish competition law and IP rights

I. The competition law regime

A. Introduction

B. The constitutional context

C. EC competition law and Irish competition law

D. The competition rules

1. The prohibitions

2. Mergers

3. Institutions

II. Intellectual property law and competition law

A. The constitutional and EC context

B. Authority decisions

1. Exclusivity

2. Software licensing

3. Mergers and sale of business

4. Vertical agreements

5. Collecting societies

III. Conclusion

Notes

7 The interface between intellectual property law and competition law in Singapore

I. Overview: IP and competition laws within the Singapore legal framework

II. Exogenous vs. endogenous limits placed on the exercise of intellectual property rights

III. Copyright law in Singapore

A. Copyright law – the fair dealing defence

B. Copyright law – defences for copyright infringement of artistic works

C. Copyright law – parallel imports

D. Copyright law – compulsory licences

IV. Patent law in Singapore

A. Patent law – claims, specifications and infringement by variants

B. Patent law – parallel imports

C. Patent law – pharmaceutical products

D. Patent law – preventing abuse of the patent monopoly

E. Patent law – compulsory licences

V. Trade mark law in Singapore

A. Trade mark law – registration criteria and protectable subject matter

B. Trade mark law – defences to infringement

C. Trade mark law – parallel imports

VI. Competition law in Singapore

A. The CCS Guideline on the Treatment of Intellectual Property Rights

B. Anticompetitive agreements under the Competition Act

C. Abuse of a dominant position under the Competition Act

VII. Looking ahead: developing the intellectual property–competition law interface in Singapore

Notes

PART III Issues related to the interface between intellectual property rights and competition law

8 Parallel imports

International treaty obligations over parallel imports

A. What are the arguments for and against allowing parallel imports?

1. Intellectual property owners and local distributors

2. Consumers

B. How are parallel imports treated in different jurisdictions?

1. Singapore

2. United States of America

3. European Economic Area and European Union

4. Malaysia

5. Japan

6. Hong Kong

7. South Korea

8. Australia

9. New Zealand

C. Parallel importation of digital works

Conclusion

Notes

9 Technology transfer

I. Introduction

II. The position of developing countries

A. Acquisition of skills and know-how

B. Access to document-embodied knowledge

C. Acquisition by importation and business partnerships

1. FDI

2. Spillover

III. Unbundling the IPR package

IV. Technology transfer at the multilateral level

V. International investment agreements and technology transfer

VI. Recommendations going forward

Notes

10 The relationship between intellectual property law and competition law: an economic approach

Introduction

Part I. Economic analysis of (intellectual) property rights

A. Property rights and efficiency

1. Efficiency

2. Property Rights

B. Application to IPRs

1. Patents

2. Copyrights

3. Trade marks

Part II. IPRs and competition policy: an economic perspective

A. Introduction

B. The argument for independence

C. Applications and specific issues

1. Patents

2. Copyrights

3. Trade marks

Conclusion

Notes

Index