ARTICLE: Intellectual property - Conflict betweeen intellectual property and competition law - Economic welfare - Incentives to innovate - Emerging information technologies - Interoperability between technologies - Compulsory licensing - Remuneration for compulsory licensing - Undertakings procedure - Commitments - Contractual freedom - French case law (NCA)

Antitrust and intellectual property : From compulsory licensing to negotiated commitments

For the past few years, competition law has had to measure the impact of its intersection with intellectual property law. Generally, those two fields complement each other and contribute to economic welfare. However, the application of intellectual property rights sometimes opens the way to abuses within markets. The intervention of antitrust authorities in matters opposing competition to intellectual property might also, in some cases, reduce incentives to innovate. Emerging information technologies, developing rapidly, pose new questions regarding access to data allowing interoperability between technologies. Faced with such issues, European and national competition authorities have dared to develop case law to force licensing. They have also had to look into the scale of remuneration for such licensing. These are drastic measures threatening to undermine intellectual property as much as contractual freedom. This type of intervention has understandably come under close scrutiny. This article provides a study of the main features of the French decisions on the matter. It highlights the potential advantages of the recent application of the ’undertakings procedure’ to resolve conflicts between competition and intellectual property.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. 1. At the confluence of competition and intellectual property, specialists in both fields meet with perplexity. The economic and commercial stakes involved are substantial for both sides, while the free exercise of competition in a market is opposed to the free exercise of rights, the loss of which may be feared to have a deplorable effect on the incentive to innovate. 2. Today, when a dispute arises concerning the abusive exercise of intellectual property rights by a dominant undertaking, the latter will try to protect its invention from any attempt at free riding, while its competitor(s) will try to demonstrate that the exclusive exercise of these

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Isabelle Mauléon-Wells, Antitrust and intellectual property : From compulsory licensing to negotiated commitments, December 2005, Concurrences N° 4-2005, Art. N° 458, pp. 53-62.

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