*
Becket McGrath
Partner, EU & Competition Group
*berwin leighton paisner
Competition law and IP-driven
business models – negotiating
the maze
*berwin leighton paisner
Competition and IP Law
Competition law vs IP Law
or
Competition law plus IP law?
blplaw.com
“Modern understanding of these two disciplines
is that intellectual property and antitrust laws
work in tandem to bring new and better
technologies, products, and services to
consumers at lower prices.”
Antitrust Enforcement and Intellectual Property
Rights: Promoting Innovation and Competition DoJ and FTC Document - April 2007
blplaw.com
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Competition and IP Law
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Competition cases involving IP – Art 81
Distribution/unilateral licensing
– Consten and Grundig v Commission
– Silhouette
– Windsurfing
– Moosehead
– Nungesser
– Coditel v Ciné Vog Films (‘Coditel (No.2)’)
– Hag II
– Technology Transfer Block Exemption
– Apple iTunes
Collective licensing
– ‘Sports rights’ (FAPL, UEFA, DFB, RCA v. OFT, BAGS v. AMRAC)
– Collecting societies (IFPI Simulcasting, GEMA, CISAC)
– Audiovisual rights (BBC Enterprises, Eurovision)
Standard setting/technology pools
– Philips Matsushita
– MPEG-2
Litigation settlement agreements/reverse payments
– Chiquita/Fyffes
– EC pharmaceuticals sector inquiry
blplaw.com
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Competition cases involving IP – Art 82
Refusals to license
– Volvo v. Veng
– Tiercé Ladbroke v. Commission
– Magill
– IMS
– Microsoft (server interoperability)
Excessive pricing
– Attheraces v. British Horseracing Board
Discriminatory pricing
– Kanal 5 v STIM
– EC Qualcomm case
Abuse of process; patent hold up/ambush
– BBI/Boosey & Hawkes
– Broadcom v. Qualcomm (s.2 Sherman Act case)
– Rambus (US and EC cases)
– AstraZeneca
– N-Data (s.5 FTC Act case)
blplaw.com
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Not forgetting Art 28 and 30…
EMI v. CBS
Silhouette v. Bourdon
Sebago
Zino Davidoff
Levi Strauss
Ideal Standard
Terrapin v. Terranova
Phil Collins v. Imrat
Deutsche Grammophon
GEMA
Basset v. SACEM
Warner Bros v. Christiansen
blplaw.com
Value may depend on co-ordination between (actual or
potential) competitors (eg standard setting, collecting societies)
Need for effective IPR protection may require tight control over
use of rights/access to standards and onward licensing (eg Apple
iPod)
Successful innovation, enhanced by network effects, may rapidly
lead to dominance, which changes the rules of the game
(Microsoft, Apple iPod, Google)
Once established, such dominance may be persistent (eg IBM)
Business model may depend on exclusivity (eg film rights)
Nebulous nature of IP-based products and speed of development
makes market definition difficult
BUT…
blplaw.com
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Competition law issues for IP-driven
businesses
The ‘right to exclude’ does deserve protection
Type of conduct, and the market context, is likely
to be more important than whether the case
involves IP/similar rights (eg collecting societies
– interchange fees)
General enforcement context (eg pre- or postModernisation?) and policy (eg the single market
imperative) may well be more important in
practice than any specific policy on IP/innovation
Much EC intervention flows from the national
status of most IPRs, rather than concerns over
the policy behind IPRs, as such
blplaw.com
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Is IP really so different?
*
Becket McGrath
Partner, EU & Competition Group
becket.mcgrath@blplaw.com
This document provides a general summary only and is not intended to be comprehensive. Specific legal advice
should always be sought in relation to the particular facts of a given situation.
*berwin leighton paisner
Competition law and IP-driven
business models – negotiating
the maze