Edited By Inge Govaere and Hanns Ullrich
PART I. REINFORCING INTELLECTUAL PROPERTY PROTECTION THROUGH MARKET POWER
PART I REINFORCING INTELLECTUAL PROPERTY PROTECTION THROUGH MARKET POWER 13 CHAPTER 1 The Relationship Between the Legal Exclusivity and Economic Market Power Links and Limits Josef DREXL Director, Max Planck Institute for Intellectual Property Competition and Tax Law; Honorary Professor for European and International Economic Law, University of Munich Introduction When inviting the speakers, the organisers of this conference asked a question that is of utmost importance. This question is: Does a right- holder’s market power make a difference when the right-holder claims intellectual property protection? This question is most often discussed with regard to the rules of competition law banning abuse of market dominance in the context of a refusal to license. It seems that the conference goes beyond that issue by also trying to clarify the inherent techniques of intellectual property rights systems for responding to the challenge of potentially adverse effects of intellectual property rights on competition. The following analysis will discuss the fundamentals of the very complex relationship between intellectual property rights and market power. Here already, the organisers of the conference deserve praise for their wisdom in directing our interest away from the legal setting of norms that control abuse of market dominance (or monopolisation in US terms) and in focusing today’s discussion on market power in more general terms. The answer to the question of whether right-holders have to respect competition law just like other dominant firms would of course be negative if conferral of market power were an inherent feature or even an...
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