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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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6 Lessons Learned and Open Questions 187

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6 Lessons Learned and Open Questions Having outlined our new test to assess refusals to license intellectual property rights, this chapter now briefly recalls the course of the investigations and sum- marizes the main results of this thesis. However, it should be clear that the re- sults presented do not offer a comprehensive solution for all kinds of cases; in- stead, they are a starting point for further research. Consequently, the chapter closes with a brief forecast as to in which areas further research is essential. 6.1 Summary of the Results In Chapter 2, we saw that the approach of the Commission to abuse cases in which dominant firms refused to supply intellectual property rights has evolved over the years. In the Magill case, for the first time the Commission applied structured criteria, which were then valid in subsequent cases. According to the so-called Magill Test, a refusal to license intellectual property rights is anti- competitive when: 1) the concerned intellectual property right is indispensable for competition in a downstream market; 2) the refusal is likely to eliminate competition in that market; 3) the production of a new product is prohibited; and 4) the refusal cannot be objectively justified. Considering the criteria of indis- pensability for a downstream market and the requirement of a new product, it seems as if the Commission already aimed at an enhancement of dynamic effi- ciency. Nevertheless, in some cases, in particular the IMS Health case, the Commission tried to circumvent this goal by artificially...

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