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Edited by Josef Drexl
Chapter 5: The New EC Competition Law Framework for Technology Transfer and IP Licensing
5 The new EC competition law framework for technology transfer and IP licensing Steve Anderman 1 Introduction EC competition policy and intellectual property rights (IPRs) are becoming widely recognized as complementary components of a modern industrial policy. Although each has other aims, both pursue the common aim of improving innovation and consumer welfare. Yet they do so by using rather different means. Intellectual property legislation such as patents, copyright and design rights laws offer IP right holders a period of exclusive rights to exploit their IPRs as a reward and incentive to innovation and R&D investment. Modern competition policy attempts to keep markets innovative by maintaining effective competition. The means used to pursue this aim include maintaining access to markets and preventing ‘foreclosure’ or illegitimate monopolization of markets. At first sight there seems to be a potential clash in the methods used by the two systems of legal regulation to achieve their common aim. The concern to maintain access to markets appears to be almost completely opposed to the concept of exclusive rights to make, use and sell a product. Indeed, historically there was a period when the misunderstanding of the economic effects of IPRs led EC competition policy to attempt to place overly strict limits on the exercise of IP rights, particularly in the field of patent licensing.1 Today, however, EC competition policy treats the economic effects of IPRs more realistically. The Community Courts and the Commission take the view that the market power associated with an IPR-protected...
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