Edited by Josef Drexl and Fabiana Di Porto
To what extent should competition agencies act as market regulators? Competition Law as Regulation provides numerous insights from competition scholars on new trends at the interface of competition law and sector-specific regulation. By relying on the experiences of a considerable number of different jurisdictions, and applying a comparative approach to the topic, this book constitutes an important addition to international research on the interface of competition and regulation. It addresses the fundamental issues of the subject, and contributes to legal theory and practice. Topics discussed include foundations of the complex relationship of competition law and regulation, new forms of advocacy powers of competition agencies, competition law enforcement in regulated industries in general, information and telecommunications markets, and competition law as regulation in IP-related markets.
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Chapter 12: Competition law as an instrument of IP regulation? The case of strategic patent filings
As many have recently observed, competition law enforcement seems to be somehow merging into a form of market regulation. This is surely true as far as innovation is concerned. Indeed, competition law has progressively acquired the role of an IP ‘watchdog’, with the mission of curtailing the scope and use of IP rights in cases where their exploitation seems to worsen rather than promote innovation. This chapter argues that the shaping of a common core of guiding principles concerning the intersection of competition law and intellectual property rights in the area of unilateral practices has become a necessity considering that not only has the number of abusive practices involving the use of IPRs recently increased, but also that new kinds of practices have emerged, posing increasingly complex issues to analyse. Among such new practices, this work will focus on the conduct of so-called strategic patent filings, pursued by dominant firms for the purpose of keeping competitors off the market.
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