The interaction between intellectual property law and competition law in the eu: Necessity of convergent interpretation with the principles established by the relevant case law

Abstract

The interaction between competition law and intellectual property law continues to raise new questions, and gives rise to several interesting topics to debate. The European Commission’s intention ought to be twofold. On the one hand to free resources for the proactive appraisal of new policy areas, and on the other hand to ensure the uniform application of EU Competition Law through procedural guidance and economic, effect-based substantive rules. European Commission Guidelines note and explain the reasons for which market participants and competition watchdogs have accepted standard-setting because of its beneficial effects. Intellectual property law and competition law rules share the same objectives of promoting innovation and enhancing consumer welfare. Furthermore, Intellectual Property Rights (IPR) promotes dynamic competition by encouraging undertakings to invest in developing either new and/or improved products and processes. This is the reason why IPR are considered to be in general pro-competitive. Due to standardization agreements, efficiency gains may be achieved; market integration can be facilitated, transactions costs can be reduced, the necessary time for innovative products offered to end users can be minimized, and the interoperability between network and products can be reduced. For these reasons the question of market power can only be assessed on a case by case basis. Even if the establishment of a standard can create or increase the market power of IPR holders possessing IPR essential to the standard, there is no presumption that holding or exercising IPR essential to a standard equates to the possession or exercise of market power. It is estimated that this concept explains the ‘careful’ approach of the Commission in the Motorola and Samsung cases. The success story of the Huawei v. ZTE judgment followed, establishing the reasonable demand of balancing the bargaining powers between owners of so-called “SEP owners” and makers of smart phones and other tele-communications devices relying upon these patents (“makers”). However, in the spring of 2017, the Commission indicated it might publish a formal policy document in order to clarify the rules on patent ownership and licensing. It is hoped that any guidance by the Commission will build at least on the Huawei/ZTE judgment.