Research Handbook on Intellectual Property and Competition Law
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Research Handbook on Intellectual Property and Competition Law

Edited by Josef Drexl

This comprehensive Handbook brings together contributions from American, Canadian, European, and Japanese writers to better explore the interface between competition and intellectual property law. Issues range from the fundamental to the specific, each considered from the angle of cartels, dominant positions, and mergers. Topics covered include, among others, technology licensing, the doctrine of exhaustion, network industries, innovation, patents, and copyright.
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Chapter 2: Is There a ‘More Economic Approach’ to Intellectual Property and Competition Law?

Josef Drexl


Josef Drexl 1 Introduction European competition law has been undergoing a fundamental reform for several years. As to the standard of control, this development started with the adoption of the so-called Umbrella Regulation No. 2790/1999 on vertical agreements.1 It continued with the adoption of the Guidelines on the application of Article 81(3) EC2 and the new Merger Regulation3 in 2004 and is now about to be continued in the current process of preparing guidelines on Article 82 EC.4 The leitmotiv of this reform, generally known as the ‘more economic approach’,5 has been described by former EC Competition Commissioner Mario Monti in the following words:6 ‘In making this revision, we have shifted from a legalistic based approach to an interpretation of the rules based on sound economic principles’. 1 Commission Regulation (EC) No. 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices, OJ 1999 No. L 338, p. 21. 2 Commission – Notice – Guidelines on the application of Article 81(3) of the Treaty, OJ 2004 No. C 101, p. 97. 3 Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), OJ 2004 No. L 24, p. 1. 4 The process of drafting such guidelines officially commenced with the publication of the DG Competition discussion paper of December 2004 on the application of Article 82 of the Treaty to exclusionary abuses, competition/antitrust/others/discpaper2005.pdf,...

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