Chapter 14: Anti-monopoly law in the compulsory licensing of intellectual property
As everyone knows, anti-monopoly law is aimed at encouraging competition and preventing monopolies, while intellectual property (IP) law is aimed at encouraging people to gain a market advantage through invention and innovation. Due to the fact that IP has become a strategic lever in corporate competition, firms with no competitors or no real competition in the technology market such as Microsoft can easily dominate or even monopolize the market. This has led to IP law being regarded by some as contributing to monopoly, or even being in opposition to anti-monopoly law. What is the relationship between the two bodies of law? Do they have any common points? And if so, what are they? Are they in conflict, and, if they are, how can this conflict be solved? Now that we live in an information society, IP is gaining ever greater importance in market competition, and IP protection vs. anti-monopoly law is emerging as a major topic in legal studies. Anti-monopoly law has to be taken into account in many issues involving IP, such as how IP rights are acquired, claimed, licensed, or denied. In this chapter, the relationship between intellectual property and anti-monopoly law will be discussed in light of a German Federal Supreme Court ruling involving technical standards and the compulsory licensing of IP. The 2004 German Federal Supreme Court (Bundesgerichtshof) ruling was mainly concerned with a de facto standard in Germany's chemical industry.
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