Chapter 4: Patents and Standards in the EU
1. 1.1 PATENTS AND INFORMAL STANDARDS Introduction The legal issues regarding patent rights and standards for compatibility which arise when the patent owner of standards refuses to license the patent to others who need to access it demonstrate the conflict between competition laws and intellectual property rights. As is the case with US antitrust laws, the EU competition laws may be used in these issues. The EU competition laws are embodied in Articles 81 and 82 of the EC Treaty. Article 82 proscribes the abuse of a dominant position in the relevant market, which can be applied to cases of refusal to license by the patent owner. In order to examine the relationship between patent rights and the abuse of a dominant position, it is necessary to study each aspect of Article 82. Thus, in this chapter, the general principles of Article 82 as well as their application to patents covering standards are examined. 1.2 Relevant Competition Law (Article 82 of the EC Treaty) Article 82 of the EC Treaty states that: Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying...
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