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Anti-trust is a term which emerged from the USA in the late 19th century at a time when a number of American corporations were collaborating by means of trusts or pools to stifle competition and to keep prices high. The famous Anti-Trust (Sherman) Act of 1890 was a manifestation of opposition to such anti-competitive behaviour. Today’s European anti-trust (competition) laws are intended to preserve the functioning of a free market economy and to ensure that consumers are charged fairly when they buy goods and services.
The IP/anti-trust interface
Intellectual property rights are monopoly rights conferred by the state as a reward for innovation and creativity. They are legal rights that can be used to protect goods and services from the downward pressure of ordinary market-driven pricing. A difficult and complex area of the law is the interface between monopolies conferred by intellectual property rights and anti-trust laws that seek to maintain open and competitive markets that work to the benefit of consumers.
Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU)
The main European anti-trust rules are found in Articles 101 and 102 of the TFEU (there are equivalent provisions in UK domestic law). These two provisions can affect intellectual property rights and agreements concerning them in different ways.
Agreements between companies - Article 101
Article 101 regulates agreements between companies. Its main purpose is to catch serious anti-competitive practices, such as cartels and price-fixing agreements, but it can render illegal any agreement between companies that is capable of having an adverse effect on competition. Many kinds of contractual agreement can be caught by Article 101, including patent and trade mark licence agreements, technology transfer and exploitation agreements, patent pools and agreements regulating industry-agreed standards. Because Article 101 can have the dramatic effect of making an illegal agreement void and unenforceable, it has been raised (as a Eurodefence) in a number of court cases concerned with the enforcement of licence agreements and intellectual property rights.
Abuse of a dominant market position – Article 102
Article 102 applies to companies acting unilaterally that abuse a dominant position on a relevant market, i.e. those firms with such a strong grip on the market that they can act in ways that would not ordinarily be possible, if the market was truly competitive. A dominant firm has a special responsibility to maintain what little competition already exists on the market and it must carefully self-regulate its behaviour. In certain circumstances, it may be an abuse of a dominant position for a company to refuse to grant licences to its intellectual property or to grant access to its technology.
Download this article by Dr Duncan Curley
Interoperability and other issues at the IP-Antitrust interface:
The EU Microsoft Case
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