A Comparative Economic Analysis of US and EU Law
New Horizons in Competition Law and Economics series
Chapter 6: IP Judicial and Administrative Processes
IP AND ANTITRUST APPROACHES TO INFRINGEMENT ACTIONS AND SOME IP ADMINISTRATIVE PROCEDURES IPR ownership may give access to some otherwise inaccessible ‘legal devices’ whose existence is intrinsically connected to the architecture of IP regimes. For instance, since IPRs are exclusive rights, their holders can bring specific legal actions, named ‘infringement actions’, against those who embezzle their inventions and creative works.1 Analogously, in the highly regulated pharmaceutical industry the mere ownership of a patent may involve some specific administrative procedures – such as the procurement of a supplementary protection certificate (hereinafter, ‘SPC’)2 and the listing of a patented drug in the Orange Book3 – that IP legislators created in order to govern product entrance into that industry.4 1 Since the beginning of the XX century the US Supreme Court wrote that, ‘the heart of [a patentee’s] legal monopoly is the right to invoke the State’s power to prevent others from utilizing his discovery without his consent’ – see Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 43 (1923). See, further, Wesley M. Cohen, Richard R. Nelson, John P. Walsh, ‘Protecting their Intellectual Assets: Appropriability conditions and why U.S. Manufacturing firms patent (or not)’ 25 (2000), available at http://www.nber.org/papers/ w7552 (showing that, ‘the threat, often implicit, of infringement suits and countersuits underpins almost all the uses of patents, whether to force participation in cross-licensing negotiations in complex product industries, to build patent fences in discrete product industries, or to protect the ability to license or commercialize a new...
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