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Refusal to License- Intellectual Property Rights as Abuse of Dominance

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Claudia Schmidt

Refusal to license intellectual property rights (IPRs) are an ongoing topic within the enforcement of Article 102 TFEU (ex Article 82 EC). Nevertheless, so far an economic founded instrument to analyse these cases is missing. To close this gap, the Innovation Effects and Appropriability Test will be developed throughout this book. Innovation research has been showing that firms rely on more appropriation mechanisms than only IPRs. The availability of these alternative instruments depends on the involved technologies, the kind of innovation, the concerned industry and so on. Consequently, it is in the centre of the Innovation Effects and Appropriability Test to analyse whether the dominant firm could rely on other appropriation instruments to protect its innovation and to recoup its investments in R&D.

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3 Do Competition Policy and Intellectual Property Rights Stand in Conflict With Each Other? 47

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3 Do Competition Policy and Intellectual Property Rights Stand in Conflict With Each Other? Before we start discussing whether the Incentives Balance Test is an appropriate instrument from an economic point of view, it is important to mention that a de- bate exists concerning the question as to whether competition policy can inter- fere with intellectual property rights at all. The underlying assumption is that competition law and intellectual property law pursue diverging goals and there- fore promote legally conflicting outcomes. Due to such different goals, intellec- tual property rights will almost always infringe competition law. From the other perspective, interference from competition policy will unduly restrict the intel- lectual property holder’s right. However, this approach is disputed. Today most scholars argue that competition policy and intellectual property rights are com- plementary to each other. Against this background, however, it is still necessary to shed some light on this issue before we continue with the Incentives Balance Test. On that account, I will briefly review the two strands of argument regarding whether intellectual property rights and competition law are conflicting or rather complementary laws. For final clarification I will then explain why we need intellectual property rights and oppose the results with the economic goals of competition policy. On this basis, we shall be able to determine the relationship between the two laws. This comparison will be concluded with a short reconciliation with European legislation. Assuming that competition law is complementary to intellectual property law, we will turn back to...

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