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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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PART II. REINFORCING MARKET POWER THROUGH INTELLECTUAL PROPERTY

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PART II REINFORCING MARKET POWER THROUGH INTELLECTUAL PROPERTY 171 CHAPTER 7 The Strategic Use of Patent Enforcement and Acquisition Methods and Competition Law Steven ANDERMAN Professor of Law, Universities of Essex and Stockholm Introduction In recent decades there has been a noticeable increase in the strategic use of patent enforcement and acquisition methods as part of wider commercial practice. This increase has been fuelled partly by a greater understanding by corporations of the value of their corporate intangible assets and the need to adopt more vigorous enforcement policies once the step is taken of giving a more realistic book value to their intangible assets. Moreover, as intangible assets have become more and more significant in overall corporate asset values, more imaginative strategic uses of patent enforcement and acquisition methods have emerged. The strategic use of patenting takes many forms and the forms vary from sector to sector. In many sectors, the strategic emphasis is on a highly aggressive enforcement of existing patents. In some sectors, there is a particular emphasis on aggressive acquisition, such as in the micro- processor sector, where firms emphasise the development of a portfolio of patents. In other sectors, such as pharmaceuticals, strategic patenting involves concerns with competition from generics and concentrates on methods of prolonging individual patent protections. These are not necessarily alternative strategies; aggressive enforcement methods can be combined with aggressive acquisition methods. Many categories of strategic patenting tend to occur in a form that appears to be legitimate profit taking and a lawful...

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