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Intellectual Property, Market Power and the Public Interest

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Edited By Inge Govaere and Hanns Ullrich

The main objective of the contributions to this book is to bring together two seemingly different strands of thought: the competition-law analysis of the exercise of intellectual property, and the discussion about the proper limits of protection, which at present takes place inside the intellectual property community. Both are burdened with their own problems, particularly so in Europe, where market integration and the divide between exclusionary and exploitative abuses ask for a more dimensional approach, and where the shaping of intellectual property protection is under not only the influence of many interests and policies, but a multi-level exercise of the Community and its member states. The question is whether, nevertheless, there is a common concern, or whether the frequently asserted convergence of the operation and of the goals of competition law and intellectual property law does not mask a fundamental difference – namely that of, on the one hand, protecting freedom of competition against welfare-reducing restrictions of competition only, and, on the other, limiting the protection of exclusive rights in the (public) interest of maintaining free access to general knowledge. The purpose of the workshop held in 2007 at the College of Europe, Bruges, and whose results are published here, was to ask which role market power plays in either context, which role it may legitimately play, and which role it ought not to play. A tentative answer might be found in the general principle that, just as intellectual property does not enjoy a particular status under competition law, so competition law may not come as a white knight to rescue intellectual property protection from itself. However, the meaning of that principle differs according to both the context of the acquisition and the exploitation of intellectual property, and it differs from one area of intellectual property to the other. Therefore, an attempt has also been made to cover more facets of the prism-like complex of problems than is generally done.

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Preface .................................................................................................... 9 Hanns Ullrich & Inge Govaere PART I. REINFORCING INTELLECTUAL PROPERTY PROTECTION THROUGH MARKET POWER CHAPTER 1. The Relationship Between the Legal Exclusivity and Economic Market Power. Links and Limits ..............................13 Josef Drexl CHAPTER 2. Intellectual Property and Sources of Market Power ............................................................35 Mark R. Patterson CHAPTER 3. Controlling the Unilateral Exercise of Intellectual Property Rights. A Multitude of Approaches But No Way Ahead? ............................................................................59 Heike Schweitzer CHAPTER 4. Is there an Independent/Additional (European, International) Open-Market Criterion for Determining Abuse?......................................................................97 Mario Siragusa CHAPTER 5. Article 82 EC as a “Built-in” Remedy in the System of Intellectual Property. The Example of Supplementary Protection for Pharmaceuticals in Italy ...............119 Pablo Ibáñez Colomo CHAPTER 6. Abuse of Regulatory Procedures in the Intellectual Property Context. The AstraZeneca Case ..................143 Matteo Negrinotti 8 PART II. REINFORCING MARKET POWER THROUGH INTELLECTUAL PROPERTY CHAPTER 7. The Strategic Use of Patent Enforcement and Acquisition Methods and Competition Law ............................171 Steven Anderman CHAPTER 8. Strategic Branding: Does Trademark Law Provide for Sufficient Self Help and Self Healing Forces?................................................................................................191 Annette Kur CHAPTER 9. Trademarks as a Tool for Market Control ................219 Elżbieta Traple PART III. INFORMATION DOMINANCE: THE LIMITS OF THE COMPETITION RULES AND THE PUBLIC INTEREST CHAPTER 10. Can Intellectual Property Rights Be Construed by the Courts to Limit their Use for Anti-Competitive Purposes?.......................................................241 Eileen Sheehan CHAPTER 11. Research Tools: Patents and the Information Market in the Knowledge Based Economy................275 Christine Godt CHAPTER 12. Exploitative Abuses: Which Competition Policy, Which Public Policy? .........................299 Imelda...

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