Competition Law, Innovation and Antitrust

Competition Law, Innovation and Antitrust

An Analysis of Tying and Technological Integration

New Horizons in Competition Law and Economics series

Hedvig Schmidt

This innovative book assesses the hotly debated topic of tying from three different perspectives: competition law, economics and intellectual property rights. It highlights the faults and benefits of the current approaches to tying under EC competition law and US antitrust law.

Chapter 5: Intellectual Property Law and Tying – An Alternative Approach

Hedvig Schmidt

Subjects: law - academic, competition and antitrust law, intellectual property law


1. INTRODUCTION This chapter seeks to establish how the laws of IP have pursued tying, and whether the approaches can be drawn upon to develop a new alternative approach which is more flexible towards tying under competition law. Tying arrangements occur in most high technology industries. and often these are structured around various forms of IP rights. For instance, the European Commission has made four negative decisions in respect of tying – three of these involved IP rights.1 Moreover, the US Supreme Court has dealt with a vast number of tying cases under US IP law and in particular the patent misuse doctrine.2 The chapter will demonstrate that under US IP law a more flexible approach to tying has been applied, and one which is clearly moved away from the per se illegality approach currently applied under both US and EC competition law. IP law therefore plays an essential role in reaching a first best solution to tying. Under EC law, the only way to pursue tying is from a competition law perspective. There is one simple explanation for this, and that is that not all IP rights are EC rights. Some IP rights have been harmonised within the EU, in particular the protection granted to computer software and databases, which deals with interface issues;3 however, others, such as patents, are still granted Case IV/30.787 Eurofix-Bauco/Hilti [1988] OJ L65/19 (Hilti Commission Decision), Elopak Italia/Tetra Pak [1991] OJ L72/1, [1992] 4 CMLR 551 (Tetra Pak II Commission Decision), and case COMP/...

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