Intellectual Property and Antitrust

Intellectual Property and Antitrust

A Comparative Economic Analysis of US and EU Law

New Horizons in Competition Law and Economics series

Mariateresa Maggiolino

This insightful book compares how the US and EU antitrust authorities have enforced Section 2 of the Sherman Act, and Article 102 of the TFEU against monopolists' practices involving intellectual property rights.

Introduction

Mariateresa Maggiolino

Subjects: economics and finance, intellectual property, law - academic, european law, intellectual property law

Extract

THE COURSE OF THE ARGUMENT This book examines whether, when, and why the antitrust authorities1 of the United States of America and European Union have enforced Section 2 of the Sherman Act2 and Article 102 of the TFEU3 in order to shape 1 In the United States, antitrust law is primarily enforced by federal judges. Actually, two public bodies are also entrusted with its application: the Antitrust Division of the Department of Justice and the Federal Trade Commission (FTC). The former influences competition law by making speeches, negotiating settlements, and issuing guidelines; the latter enjoys administrative adjudicatory powers. Yet, by and large, they both act as prosecutors rather than as decision-makers: in the end, what they can do is to bring antitrust actions before ordinary federal courts. In contrast, EU competition law is primarily applied by the European Commission, which is an administrative and political body, whose decisions can be challenged in the Court of First Instance (CFI) and in the European Court of Justice (ECJ). In fact, even national competition authorities and national judges can enforce EU competition law but, in order to guarantee a uniform and harmonized enforcing structure, their action is to some extent subject to that of the Commission. See, in this regard, Commission Notice on cooperation within the Network of Competition Authorities – OJ 2004, C101/43 – and Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 101 and 102 TFEU – OJ 2004, C101/54. In...