Kritika: Essays on Intellectual Property
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Kritika: Essays on Intellectual Property

Volume 1

Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

The field of intellectual property has broadened and deepened in so many ways, and at such pace, that there is a tendency for academic commentators to focus on the next new thing, or to react immediately to judicial developments, rather than to reflect more deeply on the greater themes of the discipline. The Kritika: Essays on Intellectual Property series is a series of books that are designed to fulfill this role by creating a forum for essays that take a critical, long-term approach to the field of intellectual property. Breaking down the barriers of specialization, and laying the foundation for an emergent critical scholarship, this first book in the series brings together the leading scholars in the field to reflect deeply on the current state and future of their discipline.
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Chapter 2: Overplaying the innovation card: The stronger intellectual property rights and competition law

Steven Anderman


The purpose of this chapter is to explore how the role of EU competition law has evolved as an external corrective to the balance struck by the IP laws between initial inventor and follow-on innovation and to offer a re-assessment of the economic thinking in the rule based interpretation of Article 102. Part I offers a summary of the balance struck within the IP laws between initial and follow on innovation. Part II explains how competition law has evolved into its role as a regulator of the conduct of IP owners and, in the process, occasionally correcting the limitations of the existing IP laws. Part III analyses the extent to which economic thinking plays a role in the rule-based case law of Article 102 and IPRs. The chapter concludes with some thoughts about the limitations of the role of competition law in restoring a more appropriate balance to the overall legal framework balancing the rights of first inventors with follow-on and cumulative innovation.

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