A Comparative Study of US and EU Approaches
New Horizons in Competition Law and Economics series
Application of antitrust rules to intellectual property (IP) has always been a perplexing subject. It has recently gained importance in the context of new technologies and the associated market developments. Over the past few years, the US and EU antitrust enforcers have taken steps to reevaluate their approach to IP rights and to tackle the related issues concerning application of the antitrust rules in high-tech sectors of the economy. In the US the Federal Trade Commission (FTC) and the Department of Justice (DOJ) held monthslong hearings focusing on the intersection of antitrust and IP laws in 2002 and published two reports on the topic. Both IP and high-technology industries were among the issues addressed in the 2007 report published by the Antitrust Modernization Commission. The agencies have also brought a number of high-profile cases involving information technology (IT) industries and IP rights, including Microsoft,1 Intel2 and Rambus.3 Moreover, the Supreme Court addressed issues of vital importance to the antitrust and intellectual property intersection in the Illinois Tool4 and Trinko5 cases. Equally fundamental developments have taken place on the other side of the Atlantic. In the spring of 2004, the European Commission adopted a new Technology Transfer Block Exemption Regulation6 and ruled that Microsoft’s refusal to provide interoperability information to its rivals constituted an abuse of a dominant position. In 2005, the Commission adopted a ground-breaking decision in the AstraZeneca case7 – the first case in which EU competition law has been applied to an alleged misuse of the patent system...