Legal and Economic Analysis of a Transatlantic Antitrust Case
Edited by Luca Rubini
Chapter 7: Microsoft v Commission and the Interoperability Issue
Steven Anderman INTRODUCTION 1. The judgment of the Court of First Instance (CFI) in Microsoft v Commission1 offers the latest judicial pronouncement on the relationship between competition law and the exercise of intellectual property rights (IPRs). The CFI continues to stress that only in ‘exceptional’ circumstances will an IPR owner be subject to a competition law remedy of compulsory licensing because a refusal to license infringes Article 82 EC. It maintains that in ‘normal’ cases the owner of an IPR is entitled to refuse to license because exclusivity is the very substance of the intellectual property right. However, the case has undoubtedly modified and extended the test of exceptional circumstances. Prior to the Microsoft case, the test of ‘exceptional circumstances’ tended to be defined by the criteria established by the Court of Justice in its Magill2 and IMS Health3 judgments. After the Microsoft case, it appears that the test of exceptional circumstances may have been widened to include another parameter which extends the test under Article 82(b) EC to certain forms of conduct limiting the technical development of secondary markets. This means that even where an IPR is exploited in a manner that is lawful under the intellectual property (IP) laws, the practice adopted to exploit the IP may, in certain circumstances, be found to be unlawful under the competition rules. It also means that the basis upon which competition law finds a refusal to share IPRs abusive is less clearly articulated. The main purpose of this chapter is...
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