Browsing by Author "Ilves, Airi"

The study analyses the widening scope of competition law in the area of intellectual property rights law and the risk factors of compulsory licensing remedy for the intellectual property rights owners at European Union market. The subject of current thesis is interesting as despite the great amount of legal literature discussing the topic it still remains a controversial and developing area of European Union competition law. Intellectual property owner operating in Europe should take advantage of knowledge of the Court of Justice of the European Union case law on compulsory licensing cases to protect its commercial interests and assess the risks of European Commission and Member States court’s to be convinced that a compulsory license is the appropriate remedy if parties will not reach the agreement on licensing through their own negotiations. The refusal to license has been considered to be an abuse of a dominant position regulated under the Article 102 of the Treaty of the Functioning the European. The EU authorities have developed a list of “exceptional circumstances” for finding a refusal to license as an abuse under the Article 102 through their decisions. The Court of Justice of the European Union develops EU law by applying dynamic interpretation, thus the primary source for addressing the research topic is the case law of the Court of Justice of the European Union. The scope of this work is limited to the analysis of the most noteworthy cases in EU jurisprudence concerning the Article 102 of the TFEU and refusal to license. In some situations when IP law fails to guarantee the level of innovation in the market the competition law’s intervention may be justified as it happened e.g. in factual situation of case Magill. The landmark decision by Court of Justice is IMS Health, setting forth the legal standard applicable in the European Union today. However, European policy will be also assessed in the light of the recent European Commission decisions and General Court case law. The most recent compulsory licensing case Microsoft will be examined to analyse the policy developments and examine what test might be applied under European competition law in the future cases. In this research paper it will be examined if the competition law in Europe has graduated towards a more economic effect based approach and how the relationship between intellectual property and competition law may be seen as complementary and not as antagonistic. The different characteristics of intellectual property rights rather than “normal” property rights will be discussed according to the development of case law and analysis conducted to see what is the rationale of the new product criterion of the exceptional circumstances test. When considering the effectiveness of the jurisprudence it is necessary to take into account the need to balance the effective competition on the market and the encouragement for further innovation. The intellectual property rights protection has an important role in promoting the technological development and thus also in providing more choice for the consumers. The exceptional circumstances test created by the Court of Justice is formalistic and does not take fully into consideration the situation where intellectual property rights owner may block the innovation, however, it must be stressed that the courts are not generally well equipped to conduct the effect-based cost-benefit analysis that is necessary in order to balance the incentives of the dominant undertaking and its competitors to innovate, and such evaluation may prove to be a difficult task for the judiciary. The standards developed in case law are fact-specific and ultimately a source of uncertainty for undertakings at EU market. The study gathers together the most significant snapshots of law and assesses the possibilities where the EU jurisprudence on compulsory licensing is heading. The author concludes that the law on compulsory licensing in Europe will continue to evolve towards lesser intellectual protection to advance competition, innovation and free movement of goods, however, in spite of the widening scope of the European competition law the conditions for issuing compulsory licenses are still highly restrictive.