A Comparative Review of New Developments
New Directions in Patent Law series
Edited by Emanuela Arezzo and Gustavo Ghidini
Chapter 5: Patents and Competition Law: Some Features of the New Interface
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 http://ec.europa.eu/competition/sectors/pharmaceuticals/ inquiry/staff_working_paper_part1.pdf (accessed 3 September 2010) (‘Sector Inquiry Report’). 3 EC Notice on Acceptance of...