Biotechnology and Software Patent Law

Biotechnology and Software Patent Law

A Comparative Review of New Developments

New Directions in Patent Law series

Edited by Emanuela Arezzo and Gustavo Ghidini

The new millennium has carried several challenges for patent law. This up-to-date book provides readers with an important overview of the most critical issues patent law is still facing today at the beginning of the twenty first century, on both sides of the Atlantic.

Chapter 5: Patents and Competition Law: Some Features of the New Interface

Steven D. Anderman

Subjects: environment, biotechnology, environmental law, law - academic, biotechnology and pharmaceutical law, environmental law, intellectual property law


Steven D. Anderman INTRODUCTION The regulation of the exercise of intellectual property rights (IPRs) by EU competition law has begun increasingly to apply to patents as well as industrial copyright and design rights. There are recent cases of misuse of the patent system within the pharmaceutical industry amounting to abuse of dominance1 and patent settlements taking the form of anticompetitive reverse or delay payments aiming to prevent the entrance of generics into existing markets.2 The field of standard setting and technology pools has attracted the attention of the competition authorities not only because of cases of patent ambush3 and FRAND (Fair, Reasonable and Non-Discriminatory Terms) ambush4 but also because of competition concerns with the process of selecting patented technologies and making licensing arrangements. Although the cases thus far resulting in a remedy of a compulsory licence of an IPR under Article 102 TFEU have mainly concerned the owners of industrial copyright such as computer programs 1 Case T-321/05 Astra Zeneca v Commission (Judgment of the General Court dated 1 July 2010) (‘Astra Zeneca’). See also the recent Bohringer case being investigated by the Commission to determine whether Bohringer misused patents to exclude competitors. The Commission’s charges concerned ‘misuse of the patent system in order to exclude potential competition in the area of chronic obstructive pulmonary disease (COPD) drugs. 2 European Commission Pharmaceutical Sector Inquiry Final Report, 8 July 2009. available at inquiry/staff_working_paper_part1.pdf (accessed 3 September 2010) (‘Sector Inquiry Report’). 3 EC Notice on Acceptance of...

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