New Horizons in Competition Law and Economics series
Chapter 4: Innovation policy to be implemented
The object of this book is thus to dissect the antitrust treatment in the US and under EU law of joint research and development (joint R & D) with thereto connected agreements for the implementation of the result of such R & D collaboration. Special focus has been on the new economy, mainly the network industries and the pharma and biotech industries. An initial proposal would be that the US and Europe, not having a unified experimental use exemption, need to align (harmonise) their experimental use defences under intellectual property law. Under competition law, the consequence of different experimental use defences, between the EU and the US, is difficult to establish. As discussed above, in theory, it creates unexpected effects. Firms are forced to collaborate since the experiment use exemption never or seldom applies. Moreover, it is clear, from the above, and also from Peritz’s research, that a limited or very restricted unlicensed experimental use defence increases transaction costs. Firms must at least enter into licence negotiations and agreements, which, if the transaction cost increases, will imply that scarce resources are not allocated in the most efficient way. One of the ideas or theses of the book is to propose a way to identify dominance or market power for the participants of an R & D collaboration in the innovation segment without the establishment of an innovation ‘market’.
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