Thông tin tài liệu
EUROPEAN COMPETITION LAW ANNUAL 2005:
The Interaction between Competition Law and Intellectual Property Law
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page i
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page ii
EUROPEAN COMPETITION LAW ANNUAL:
2005
The Interaction between Competition Law and
Intellectual Property Law
Edited by
Claus-Dieter Ehlermann
and
Isabela Atanasiu
OXFORD – PORTLAND OREGON
2007
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page iii
Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
920 NE 58th Avenue, Suite 300
Portland, OR 97213-3786
USA
Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190
Fax: +1 503 280 8832
E-mail: orders@isbs.com
Website: www.isbs.com
© The editors and contributors severally 2007
The editors and contributors have asserted their right under the Copyright, Designs and
Patents Act 1988, to be identified as the authors of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any mean, without the prior permission of Hart Publishing,
or as expressly permitted by law or under the terms agreed with the appropriate reprographic
rights organisation. Enquiries concerning reproduction which may not be covered by the above
should be addressed to Hart Publishing at the address below.
Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW
Telephone: +44 (0)1865 517530 Fax: +44 (0) 1865 510710
E-mail: mail@hartpub.co.uk
Website: http://www.hartpub.co.uk
British Library Cataloguing in Publication Data
Data Available
ISBN-13: 978-1-84113-645-5 (hardback)
ISBN-10: 1-84113-645-X (hardback)
Typeset by Hope Services, Abingdon
Printed and bound in Great Britain by
Biddles, King’s Lynn, Norfolk
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page iv
PERMANENT SPONSORS OF THE
ANNUAL EUI COMPETITION
WORKSHOPS
Blake, Cassels & Graydon LLP
Contact: Calvin S. Goldman, QC
Commerce Court West
199 Bay Street
Toronto, Ontario
Canada
M5L 1A9
Tel: 416 863 22 80
Fax: 416 863 26 53
E-mail: cal.goldman@blakes.com
Cleary Gottlieb
Contact: Mario Siragusa
Rome Office
Piazza di Spagna 15
I-00187 Rome
Tel: (06) 695 221
Fax: (06) 692 00 665
E-mail: msiragusa@cgsh.com
Hengeler Müller
Contact: Jochen Burrichter
Benrater Strasse 18-20
40213 Düsseldorf
Germany
Fax: 00 49 211 83 04 222
E-mail: jochen.burrichter@hengeler.com
Howrey Simon Arnold & White LLP
Contact: James F. Rill, Esq.
1299 Pennsylvania Ave., NW
Washington, DC 20004
Tel: (001 202) 383 65 62
E-mail: rillj@howrey.com
Fax: (001 202) 383 66 10
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page v
Martinez Lage & Asociados
Contact: Santiago Martínez Lage
Claudio Coello 37 - 28001 Madrid
Tel (34) 91 426 44 70 –
Fax (34) 91 577 37 74
E-mail: smlage@m-lage.es
Skadden
Contact: Barry Hawk
Brussels Office
523 Avenue Louise
B-1050 Brussels
Tel: (32 2) 639 03 00
Fax: (32 2) 639 03 39
E-mail: bhawk@skadden.com
White & Case LLP
Contact: Ian S. Forrester, QC
Brussels Office
62, rue de la Loi
B-1040 Brussels
Tel: (32 2) 219 16 20
Fax: (32 2) 219 16 26
E-mail: forreia@brussels.whitecase.com
WilmerHale
Contact: John Ratliff
Bastion Tower
Place du Champ de Mars/Marsveldplein 5
B-1050 Brussels, Belgium
Tel: (32 2) 285 49 08
Fax: (32 2) 285 49 49
E-mail: john.ratliff@wilmerhale.com
vi Permanent Sponsors of the Annual EUI Competition Workshops
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page vi
10TH ANNUAL EU COMPETITION LAW
AND POLICY WORKSHOP:
THE INTERACTION BETWEEN
COMPETITION LAW AND
INTELLECTUAL PROPERTY LAW
3–4 June 2005, EUI Florence
Participants
Abbott Alden, Federal Trade Commission, Washington DC, USA.
Allendesalazar Corcho Rafael, Martínez Lage & Asociados, Madrid, Spain.
Amato Giuliano, Minister of Home Affairs of Italy, former President of the
Italian Antitrust Authority and former Professor of Law at the European
University Institute, Florence, Italy.
Anderman Steven, University of Essex, School of Law, Essex, UK.
Bishop Simon, RBB Economics, London, UK.
Burrichter Jochen, Hengeler Müller, Düsseldorf, Germany.
Drexl Josef, Institute for International Law at the University of Munich, and
Director at the Max Planck Institute for Intellectual Property,
Competition and Tax Law, Munich, Germany.
Dreyfuss Rochelle, New York University, School of Law, New York, USA.
Durand Benoît, Chief Economist Team, DG Competition, European
Commission—Brussels, Belgium.
Ehlermann Claus-Dieter, WilmerHale, Brussels, former Professor of Law at
the EUI, and forner Director General of the Legal Service and
Competition Directorate at the European Commission, Brussels.
Fels Allan, Dean of the The Australia and New Zealand School of
Government (ANZSOG), Melbourne, Australia.
Fingleton John, Chief Executive, Office of Fair Trading, London, UK, and
former Chairman of the Irish Competition Authority, Dublin, Ireland.
Forrester Ian, White and Case, Brussels, Belgium.
Fox Eleanor, New York University, School of Law—New York, USA.
Ghidini Gustavo, LUISS University, and Director of the Osservatorio di pro-
prietà intelletuale, concorrenza e communicazioni—Rome, Italy.
Goldman Calvin, Blake, Cassels & Graydon LLP—Toronto, Canada.
Jenny Frédéric, Department of Economics, and Director of International
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page vii
Relations, ESSEC Business School, Paris, France, former Vice-President
of the French Competition Council.
Kjøelbye Lars, Deputy Head of Unit Enforcement Priorities and Decision
Scrutiny, DG Competition, European Commission—Brussels, Belgium.
Komninos Assimakis, White & Case, Brussels, Belgium.
Lowe Philip, Director General, DG Competition, Brussels, Belgium.
Melamed Douglas, WilmerHale, Washington DC, USA.
Mestmäcker Ernst-Joachin, Max Planck Institut für ausländisches und inter-
nationales Privatrecht, Hamburg, Germany.
Newman Penny, Chief of Antitrust, Bertelsmann AG, Brussels, Belgium.
Pate Hewitt, Hunton & Wiliams, Washington DC, former Assistant Attorney
General, US Department of Justice, Washington DC, USA.
Peeperkorn Luc, DG Competition, Policy Development Unit, Technology
Transfer Review, Brussels, Belgium.
Platt Majoras Deborah, Chairman of the Federal Trade Commission,
Washington DC, USA.
Plompen Peter, Plompen Law, Eindhoven, The Netherlands.
Rey Patrick, Institut d’économie industrielle, Université des Sciences
Sociales, Toulouse, France.
Rill James, Howrey LLP, Washington DC, USA.
Schweitzer Heike, Max Planck Institut für ausländisches und internationales
Privatrecht, Hamburg, Germany.
Siragusa Mario, Cleary Gottlieb, Rome, Italy.
Ullrich Hanns, Law Department, European University Institute, Florence,
Italy.
Venit James, Skadden, Brussels, Belgium.
Vinje Thomas, Clifford Chance, Brussels, Belgium.
viii List of Participants at the 2005 Workshop
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page viii
CONTENTS
List of Sponsors v
Participants vii
Table of Cases xiii
INTRODUCTION xxvii
SESSION ONE: GENERAL ASPECTS 1
1PANEL I: TO WHAT EXTENT DOES IP REQUIRE/JUSTIFY
ASPECIAL TREATMENT UNDER COMPETITION RULES?3
Discussion 3
PANEL II: A CRITICAL EXAMINATION OF THE TT BLOCK EXEMPTION
REGULATION AND TT GUIDELINES 34
Discussion 34
2 Working Papers 47
I R. Hewitt Pate: Competition and Intellectual Property
in the US: Licensing Freedom and the Limits of Antitrust 49
II Ian S. Forrester QC: Regulating Intellectual Property
Via Competition? Or Regulating Competition Via
Intellectual Property? Competition and Intellectual
Property: Ten Years On, The Debate Still Flourishes 59
III Philip Lowe and Luc Peeperkorn: Intellectual
Property: How Special is its Competition Case? 91
IV Gustavo Ghidini and Emanuela Arezzo:
On the Intersection of IPRs and Competition Law With
Regard to Information Technology Markets 105
V Rochelle Dreyfuss: Unique Works/Unique Challenges
at the Intellectual Property/Competition Law Interface 119
VI Simon Bishop and Dan Gore: From Black and White
to Enlightenment? An Economic View of the Reform of
EC Competition Rules on Technology Transfer 141
VII Lars Kjøelbye and Luc Peeperkorn: The New
Technology Transfer Block Exemption Regulation
and Guidelines 161
VIII Steven Anderman: Technology Transfer and the
IP/Competition Interface 211
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page ix
SESSION TWO: SELECTED PROBLEM AREAS 237
1PANEL III: PATENT POOLS 239
Discussion 239
PANEL IV: COLLECTING SOCIETIES 254
Discussion 254
2 Working Papers 271
I A. Douglas Melamed and David Lerch: Uncertain
Patents, Antitrust, and Patent Pools 273
II Peter Plompen: The New Technology Transfer
Guidelines (TTG) as Applied to Patent Pools and
Patent Pool Licensing: Some Observations Regarding
the Concept of ‘Essential Technologies’ 295
III Hanns Ullrich: Patent Pools: Approaching a Patent
Law Problem Via Competition Policy 305
IV Allan Fels, AO and Jill Walker: Australian Intellectual
Property Law, Competition and Collecting Societies:
Efficiency, Monopoly, Competition and Regulation 329
V Ernst-Joachim Mestmäcker: Collecting Societies 343
VI Frédéric Jenny: EC Competition Law Enforcement and
Collecting Societies for Music Rights: What Are We
Aiming For? 361
VII Rafael Allendesalazar and Roberto Vallina:
Collecting Societies: The Usual Suspects 371
VIII Thomas Vinje and Ossi Niiranen: The Application
of Competition Law to Collecting Societies in a
Borderless Digital Environment 399
SESSION THREE: SELECTED PROBLEM AREAS
(CONTINUED) 419
1PANEL V: INTELLECTUAL PROPERTY AND MERGER CONTROL 421
Discussion 421
PANEL VI: ABUSE OF DOMINANCE IN LICENSING AND REFUSAL TO
LICENSE 439
Discussion 439
2 Working Papers 461
I Deborah Platt Majoras: The Role of Intellectual
Property in Merger Review: Recent Cases from the
US Antitrust Enforcement Agencies 463
II Benoît Durand: Intellectual Property and Merger
Control: Review of the Recent Experience under the
European Merger Regulation 475
x Contents
(A) Ehlermann 06 Prelims 2/3/07 09:38 Page x
[...]... xxviii Interaction between Competition Law and Intellectual Property Law Why the Subject? When Claus-Dieter Ehlermann asked me in late December 2004 whether I would be willing to contribute to the 10th Annual Competition Law and Policy Workshop, I was not quite sure whether he was about to offer me a Christmas gift or another Dardanians present.1 After all, the relationship between the protection of intellectual. .. S (1998): EC Competition Law and Intellectual Property Rights, Oxford University Press, Oxford, pp 11 et seq As to the Court (Aa) ELR Introduction xxx 1/3/07 16:44 Page xxx Interaction between Competition Law and Intellectual Property Law In addition, competition law itself has changed This is most obvious as regards European law Contrary to rst impressions, and beyond the regulation of the practicalities... the rules for determining the optimal interaction1 6 between the two bodies of law The Areas of Interaction 1 The transactional context of intellectual property- related restrictions of competition both the expansion of intellectual property protection and the continuous unfolding of competition law necessarily meant an extension of the areas of contact and possible conict or interaction In a rst approach... xxxi Interaction between Competition Law and Intellectual Property Law xxxi arrangements or practices in competition, and in particular its focus on effects rather than on form, may result in a shift of emphasis in the analysis of intellectual property- related restrictions of competition, namely: from delimiting the legitimate scope and exploitation of the exclusive IP right by reference to free competition, ... to their distinct main purpose As simple as this distinction is, it points to the areas where competition rules may be intellectual property- specic and those where they are not, the pro- or anticompetitive nature of the transaction also determining the assessment of the concomitant intellectual property- related elements of the transaction 1.1 Intellectual property- specic transactions Intellectual property- specic... the title of the workshop was chosen by C.-D Ehlermann, and probably not with the connotation given to it in the text (Aa) ELR Introduction 1/3/07 16:44 Page xxxii xxxii Interaction between Competition Law and Intellectual Property Law by Commission Regulation 772/2004 on the application of Article 81 EC to certain categories of technology transfer agreements17 and the accompanying Guidelines on the. .. Why the Subject? The Areas of Interaction 1 The transactional context of intellectual property- related restrictions of competition 1.1 Intellectual property- specic transactions 1.2 Intellectual property- supported transactions a Franchise agreements b Joint research and development 1.3 Intellectual property- resistant transactions 2 Technology transfer: how far does the rationale carry? 2.1 Power or property? ... of the European Parliament and the Council on the harmonisation of certain aspects of copyright and related rights in the Information Society, OJ L 167 [2001] 9 For this distinction between the existence and the exercise of intelelctual property rights, as introduced by the ECJ in its judgment of July 13, 1966, in Joined Cases 56 and 58/64, Grundig and Consten v Commission [1966] 321, 394, see Anderman... on the one handto determining the conditions for its most efcient use as part of a cooperative or monopolistic innovation/investment strategy in markets with a sufcient degree (or at least a likelihood) of effective competition, on the other Instead of dening the intersection between intellectual property law and competition law, as was once done,15 IPR-related antitrust law would thus provide the. .. 16:44 Page xxxv Interaction between Competition Law and Intellectual Property Law xxxv a Franchise agreements The format closest to intellectual property- specic transactions is the franchise agreement Franchises essentially represent service-based distribution systems using trademark and design protection as a support and control instrument in exchange for the provision of retail know-how to the franchisees.36 . EUROPEAN COMPETITION LAW ANNUAL 2005:
The Interaction between Competition Law and Intellectual Property Law
(A) Ehlermann 06 Prelims. Page ii
EUROPEAN COMPETITION LAW ANNUAL:
2005
The Interaction between Competition Law and
Intellectual Property Law
Edited by
Claus-Dieter Ehlermann
and
Isabela
Ngày đăng: 16/03/2014, 12:20
Xem thêm: EUROPEAN COMPETITION LAW ANNUAL 2005: The Interaction between Competition Law and Intellectual Property Law doc, EUROPEAN COMPETITION LAW ANNUAL 2005: The Interaction between Competition Law and Intellectual Property Law doc, Session One. General Aspects 1: Panel Discussion, I. Competition and Intellectual Property in the US: Licensing Freedom and the Limits of Antitrust, II. Regulating Intellectual Property Via Competition? Or Regulating Competition Via Intellectual Property? Competition and Intellectual Property: Ten Years On, the Debate Still Flourishes, III. Intellectual Property: How Special is its Competition Case?, IV. On the Intersection of IPRs and Competition Law With Regard to Information Technology Markets, V. Unique Works/Unique Challenges at the Intellectual Property/Competition Law Interface, VI. From Black and White to Enlightenment? An Economic View of the Reform of EC Competition Rules on Technology Transfer, VII. The New Technology Transfer Block Exemption Regulation and Guidlines, VIII. Technology Transfer and the IP/Competition Interface, Session Two. Selected Problem Areas 1: Panel Discussion, I. Uncertain Patients, Antitrust, and Patent Pools, II. The New Technology Transfer Guidlines (TTG) as Applied to Patent Pools and Patent Pool Licensing: Some Observations Regarding the Concept of 'Essential Technologies', III. Patent Pools: Approaching a Patent Law Problem Via Competition Policy, IV. Australian Intellectual Property Law, Competition and Collecting Societies: Efficiency, Monopoly, Competition and Regulation, VI. EC Competition Law Enforcement and Collecting Societies for Music Rights: What Are We Aiming For?, VII. Collecting Societies: The Usual Suspects, VIII. The Application of Competition Law to Collecting Societies in a Borderless Digital Environment, Session Three. Selected Problem Areas (Continued) 1: Panel Discussion, I. The Role of Intellectual Property in Merger Review: Recent Cases from the US Antitrust Enforcement Agencies, II. Intellectual Property and Merger Control: Review of the Recent Experience under the European Merger Regulation, III. Reflections on Enforcement Actions and Statements Concerning Intellectual Property Elements of Merger Review, IV. Intellectual Property and Merger Control (Germany/EU), V. Intellectual Property and Merger Control, VI. Canada's Competition Act, Unilateral Conduct and The Licensing of IP Rights: Balancing on a Tight Rope, VII. Article 82 EC: Exceptional Circumstances: The IP/Antitrust Interface After IMS Health, VIII. Monopolization, Abuse of Dominance, and Refusal to License Intellectual Property to Competitors - Do Antitrust Duties Help or Hurt Competition and Innovation? How Do We Know?, IX. Abuse of Dominance in Licensing and Refusal to License: A 'More Economic Approach' to Competition by Imitation and the Competition by Substitution