Controlling the unilateral exercise of intellectual property rights: a multitude of approaches but no way ahead? The transatlantic search for a new approach

The complex interface between intellectual property law and competition law is currently under review both in the US and the EU. One field of contention is the unilateral exercise of intellectual property rights. This paper presents the different approaches recently taken by different US courts, critically reviews the ECJ’s jurisprudence in the much-debated decisions Magill and IMS Health and discusses the test proposed by the EU Commission in its Discussion Paper on Exclusionary Abuses, finding that none of the approaches has addressed the problem convincingly so far. In searching for a way ahead, the paper attempts to systematize the different positions taken in the literature, contrasting in particular an “IP law approach” and a “competition law approach”. It argues that a pure “IP law approach”, popular in the US, is not fully applicable in the EU where IP law remains national and must respect the supremacy of the EU competition rules which must be applied uniformly in all Member States. Other theories which strive to take both IP and competition law rationales into account – e.g. Heinemann’s “scope of reward”-theory – leave open the criteria on the basis of which this shall be done. The most promising approach, then, may be to shift back attention towards competition policy rationales and to focus on the concept of “contestable markets”, as by Heinemann and Drexl have recently proposed. The threshold for antitrust intervention must, however, remain high. The three criteria used in the telecommunications sector to decide when regulation is justified may be of help to determine cases of legitimate intervention