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Competition Law Challenges in the Next Decade


Edited By Sofia Oliveira Pais

In the European Union, competition law has expanded and matured, assuming a key role in the promotion of consumer welfare, economic progress and public interest in general. Nevertheless, several issues remain open. Should the European Union remain faithful to antitrust public enforcement or fully consider the complementary role of private enforcement? Are the European solutions concerning exclusionary abuses coherent and predictable? What role should National Competition Authorities play in the context of State Aid? This book attempts to analyse and discuss some open, selective questions concerning three particular topics on competition law that are becoming highly relevant in the European and national praxis: antitrust private enforcement, exclusionary abuses and state aid. To address these issues, two seminars and international conferences, supported by the European Commission, took place at Católica Porto School of Law, Catholic University of Portugal, in March 2014 and March 2015. This publication includes the papers presented in those events, which gathered well-known and respected scholars and practitioners in the field of competition law, leading to a productive debate about EU competition law challenges in the next decade.
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Exclusionary abuses: refusal to license intellectual property rights



1. Introduction

Intellectual property rights (patents, trade-marks and copyright) are private rights granted by sovereign states in the public interest. There are various justifications put forward in order to explain the need for the existence of intellectual property rights. John Locke’s writings about property are probably the most commonly used as, according to him, “every man has a ‘property’ in his own ‘person’. […] The ‘labour’ of his body and the ‘work’ of his hands, we may say are properly his. Whatsoever, then, he removed out of the state that Nature has provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. […] For this ‘labour’ being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in the common for others”.3 In applying this to the ownership of intellectual property rights, it follows that “property rights in intangible creations operate as reward for the author’s intellectual labour”.4

Intellectual property rights are exclusionary rights by their very nature given that the owners of intellectual property may exercise their rights so as to prevent other market operators from either manufacturing products protected by a patent they own, by applying identical or similar marks to their registered trade-marks to identical or...

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