Economic analysis rarely appears on the judicial horizon in intellectual property litigation. In competition cases, by contrast, economists are familiar figures in the courtroom and the language of economics is scattered throughout the judgments of even the highest courts. One might expect, therefore, that refusals to license intellectual property would generate the same fruitful symbiosis between law and economics when those refusals surface in competition proceedings. This however, has not been how the law on this subject has developed in most jurisdictions. Courts and enforcement agencies faced with a unilateral refusal to license have instead tended to retreat into sketchily articulated black letter rules and presumptions which then have to be fenced off from the rest of competition law by economically irrelevant qualifications and distinctions based on private law categorisations of, and rationales for, individual intellectual property rights. This bypassing of case-by-case analysis in favour of more traditional modes of legal reasoning is not entirely the fault of lawyers. Economists have contributed to this state of affairs by urging judges and regulators to convert empirically undernourished theories about the proper role of intellectual property in a market economy into rules of law and evidentiary presumptions intended to be binding in future cases. How this came about and what it means for the future of effective competition enforcement globally are the twin concerns of this book.

Economic analysis rarely appears on the judicial horizon in intellectual property litigation. In competition cases, by contrast, economists are familiar figures in the courtroom and the language of economics is scattered throughout the judgments of even the highest courts. One might expect, therefore, that refusals to license intellectual property would generate the same fruitful symbiosis between law and economics when those refusals surface in competition proceedings. This however, has not been how the law on this subject has developed in most jurisdictions. Courts and enforcement agencies faced with a unilateral refusal to license have instead tended to retreat into sketchily articulated black letter rules and presumptions which then have to be fenced off from the rest of competition law by economically irrelevant qualifications and distinctions based on private law categorisations of, and rationales for, individual intellectual property rights. This bypassing of case-by-case analysis in favour of more traditional modes of legal reasoning is not entirely the fault of lawyers. Economists have contributed to this state of affairs by urging judges and regulators to convert empirically undernourished theories about the proper role of intellectual property in a market economy into rules of law and evidentiary presumptions intended to be binding in future cases. How this came about and what it means for the future of effective competition enforcement globally are the twin concerns of this book.

Refusal to license intellectual property rights (IPRs) are an ongoing topic within the enforcement of Article 102 TFEU (ex Article 82 EC). Nevertheless, so far an economic founded instrument to analyse these cases is missing. To close this gap, the Innovation Effects and Appropriability Test will be developed throughout this book. Innovation research has been showing that firms rely on more appropriation mechanisms than only IPRs. The availability of these alternative instruments depends on the involved technologies, the kind of innovation, the concerned industry and so on. Consequently, it is in the centre of the Innovation Effects and Appropriability Test to analyse whether the dominant firm could rely on other appropriation instruments to protect its innovation and to recoup its investments in R&D.

In 1988, a Roundtable committee, in conjunction with the Industrial Research Institute, developed a set of model agreements to streamline the negotiation process. The intent was that these models would decrease the time and effort needed to develop a research agreement, as well as provide a starting point for companies and universities new to negotiating agreements. In general, the models were well received by the academic and industrial communities. However, one concern, intellectual property rights, continues to pose significant hurdles to successful negotiation. Intellectual Property Rights in Industry-Sponsored University Research: Guide to Alternatives for Research Agreements identifies the contentious issues related to intellectual property rights and develops contract language that makes it easier to negotiate agreements for industry-sponsored university research. This report clarifies issues that cross institutional boundaries when university-industry research agreements are negotiated.

Consumers can make choices because of the differentiation that is preserved by intellectual property. Competition law informs intellectual property, generally with the intent of ensuring that it achieves this main purpose. However, very often, certain public policies relating to competition interfere with the way intellectual property should normally operate, either with the purpose of reinforcing its differentiating role, or with the objective of submitting it to other public goals – such as access to essential goods and services, or in recognition of situations where a given invention becomes part of a technical standard or is deemed dangerous to health or the environment. This book presents eighty cases that interpret the various public policies that mould the interface of intellectual property law with competition law (or antitrust). Although most cases are from the United States - which has developed an enormously wide wealth of jurisprudence in this area - there are also cases from the European Union, the United Kingdom, Australia, Canada, South Africa, Brazil, South Korea, India, and Argentina. The author presents the cases under the following general headings: • setting the right dosage (i.e., avoiding too much or too little intellectual property); • setting the standards of differentiation; • refusing to license intellectual property; • licensing (and assigning) intellectual property; • enforcing intellectual property rights; • remedies; • intellectual property in sectors of special public interest; and • technical standards. Revealing in extraordinary depth the tensions behind the values of the free market which intellectual property serves and the variety of responses these tensions provoke, this book may be regarded as a watershed resource regarding the principles and policies that, sometimes coherently, sometimes not, preside over the very complex relationship between intellectual property and antitrust. It is sure to be greatly valued by all professionals in both fields, from practitioners to policymakers, as well as by academics.

This is the second edition of the Antitrust Section's handbook on the Department of Justice and Federal Trade Commission's Antitrust Guidelines for the Licensing of Intellectual Property. Like its predecessor, this volume provides a description of the enforcement agencies' antitrust policy with respect to the licensing of patents, copyrights, trade secrets, and know-how. It also is updated to reflect the pertinent developments since the agencies issued their Guidelines seven years ago. Since 1995, the agencies have initiated a wide variety of enforcement actions involving intellectual property and have pursued claims ranging from alleged price fixing among patent holders to allegedly anticompetitive settlements of infringement litigation. This book discusses these enforcement actions and the recent judicial decisions in this area and also provides some historical perspective on the agencies' current policy with respect to the licensing of intellectual property. The book includes the complete text of the 1995 Department of Justice and Federal Trade Commission Antitrust Guidelines for the Licensing of Intellectual Property.

In modern markets innovation is at least as great a concern as price competition. The book discusses how antitrust policy and patent and copyright laws interact to create market dynamics that affect both competition and innovation. Antitrust and intellectual property policies for the most part are complementary, sharing common goals of promoting innovation and economic welfare. In some cases, however, their distinct approaches, one based on competition and the other on exclusion, come into conflict. As antitrust authorities focus increasingly on ensuring that firms do not interfere with innovation by rivals or impede the pace of technological progress in an industry, they necessarily must confront difficult questions about the strength and scope of intellectual property rights. When should private property rights give way to public competition objectives? When is it appropriate to remedy anticompetitive outcomes through access to protected intellectual property? How does antitrust enforcement or competition itself affect incentives to innovate? Leading economists and lawyers address these questions from both US and EU perspectives in discussing salient antitrust cases involving intellectual property rights such as Microsoft, Magill, Kodak, IMS and Intel.

This book is the definitive treatise in the field. It provides in-depth coverage of not only standard contract provisions, but also the intellectual property, antitrust, misuse, and more.