A Comparative Economic Analysis of US and EU Law
New Horizons in Competition Law and Economics series
Chapter 3: Ownership of IPRs
CONCERNS ABOUT ALLOWING MONOPOLISTS TO HOLD IPRS IP laws are very ‘democratic’: they allow any kind of firm, dominant firms included, to hold IPRs. After all, IP laws deal with ownership of resources and not with the likely consequences that monopoly power – however strengthened by IPRs – may produce in markets. Further, whatever the rationale supporting IPRs,1 policy-makers do not contradict any of them by allowing monopolists to hold IPRs. For instance, there is no apparent reason why monopolists should be prevented from owning the fruits of their labor that result in inventions and creative works; likewise there is no apparent reason why society as a whole would welcome the benefits that monopolists’ innovations produce less than the advantages that any other firm’s intellectual goods produce. Nevertheless, once outside the IP perspective, one might question whether, under at least some economic models, letting dominant firms own IPRs might both strengthen their market power and harm consumer welfare. Consequently, one could ask if US courts and EU antitrust institutions have ever forbidden or restricted dominant firms from developing and acquiring IPRs2 – for example, by adopting different standards for In this regard, see the book’s introduction. For simplicity’s sake, this chapter avoids making any distinction between the act of innovating – that is, developing and acquiring either an invention or a creative work – and the acts of patenting and copyrighting them – that is, the act of procuring an IPR upon those innovations. Further, it must be acknowledged that some of the anticompetitive strategies...
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