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Chapter 1: Competition Law and Intellectual Property Rights – Outline of an Economics-based Approach
Olav Kolstad 1 Competition law and IP law – in conflict or pursuing a common aim? From a competition law point of view intellectual property rights (IPRs) may be viewed as a means to reduce competition. An IPR gives the right holder a right hindering others from offering the protected product to the market in competition with the IPR holder. An IPR may also be used to restrict competition between licensees given the right to produce a protected product. EC Treaty Articles 81 and 82 protect the market mechanism from anti-competitive conduct. If national legislation on IPRs gives the right holders the possibility to restrict competition, the logical response from the EC competition rules is to censor anti-competitive conduct based on IPRs. The relationship between EC Treaty Articles 81 and 82 and IP law is not necessarily one of conflict. It can be argued that competition law and IP law share the same economic objectives. If the two sets of rules are interpreted against the background of a common aim, possible conflicts between competition law and IP law can be reduced. In section 2, I will outline a theoretical framework for an economics-based analysis of the common goal of competition and IP law. In section 3, I will apply the theoretical framework developed in section 2 in the interpretation of Articles 81 and 82. 2 The theoretical framework – an outline 2.1 The efficiency goal of Articles 81 and 82 It is well established that EC competition law has an economic goal....
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