The Application of the essential facilities doctrine to intellectual property has been criticized in the European Union and the United States. Northwestern Journal of Technology and Intellectual Property Volume 11|Issue 5 Article 2 2013 Search, Essential Facilities, and the Antitrust Duty to Deal Marina Lao Seton Hall University School of Law This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. 2. The triggered problem was further explored in the IMS case , which constituted suitable opportunity for the Court of Justice to establish a clear principle on essential facilities in the context of intellectual property rights. Moreover, it is very much pertinent to elaborate the extent to which the essential facilities doctrine can be made applicable in a given situation and time. Hou (2012) Hou, Liyang, 2012. I would like to thank Professor Mark Patterson for his advice and guidance, Stephen Dixon and Kate Patton for their hard work, and my wife Katharine Deabler for her support. It is high time to revive, renew, and expand the essential facilities doctrine in the digital economy. Even commentators who approve of applying the essential facilities doctrine to intellectual property in appropriate cases share the view that on this point the EU and the US clearly diverge.5 This paper argues that, at least in the context of copyright law, this analysis is at best incomplete and at worst incorrect. Three conclusions follow: First, diversification restraints on the owners of essential facilities are inefficacious. The purpose of the doctrine is to impose upon an undertaking in possession of an important and unique facility a duty to give access to the facility to other undertakings which cannot pursue their own activity without such access. Cover Page Footnote . The question of interface between the Intellectual Property Rights (IPR) and competition laws is a debatable subject. Kritika: Essays on Intellectual Property (Drahos, Ghidini, Ullrich eds. The Essential Facilities Doctrine in Information Economies: Illustrating Why the Antitrust Duty to Deal is Still Necessary in the New Economy . Refus de vendre un bien ou de fournir la prestation d’un service, oppose généralement à un détaillant ou à un grossiste. Its roots originate in the Terminal Railroad Combination case of 1912.2 Under EC law, the development of the essential facilities doctrine has been based on Article 82 of the EC Treaty. The Application of the essential facilities doctrine to intellectual property has been criticized in the European Union and the United States. In International Review of Intellectual Property and Competition Law, Vol. One is the essential facilities doctrine, discussed below. Intellectual Property and the Essential Facilities Doctrine. Community within the context of essential facilities of intellectual property rights, where the arguments for strong intangible property rights clash with the efficiency arguments of competition law. Verizon was providing access to its network on a discriminatory manner to the detriment of the competitors and was therefore acting contrary to the … In the Microsoft case, the Court of First Instance applied the doctrine, but it lowered the standards for the imposition of a compulsory license considerably. 414 Revue générale de droit (2009) 39 R.G.D. The essential facilities doctrine or the ‘bottleneck’ doctrine is part of an old, if controversial, theory of antitrust liability, whereby a monopolist leverages its monopoly power to obtain a competitive advantage by denying access to an essential facility. Essential Facilities Doctrine on Intellectual Property Rights: A Comparison of the Approaches from the United States of America, the European Union and China Martins Zwicky, Cibele Editeur Essential Facilities Doctrine Reiko Aoki ∗ John Small † September 2002 Abstract We look at compulsory licensing of intellectual property as rem-edy for anti-competitive practice. Slovak Telekom: ECJ on essentials of the ‘essential facilities’ doctrine. which previously enjoyed the status of statutory monopolies. ESSENTIAL FACILITIES DOCTRINE AND ITS APPLICATION IN INTELLECTUAL PROPERTY SPACE UNDER CHINA’S ANTI-MONOPOLY LAW Yong Huang, Elizabeth Xiao-Ru Wang, & Roger Xin Zhang ∗ INTRODUCTION Intellectual property rights (“IPRs”)1 are the cornerstone of the modern economy.2 Questions regarding the use of another’s IPRs have long been a over open access in other fields. community properly understands and applies Western antitrust/intellectual property concepts like the “essential facilities doctrine Recently, FTC .” Commissioner Ohlhausen pointed out that some in China misunderstand the essential facilities doctrine in the United States and its use in a recent FTC U.S. law permits application of the essential facilities doctrine to intel-lectual property if the rightholder attempts to use the legitimate right to exclude inherent in an intellectual property right to restrict competi- 01.04.2021 NL law. It is closely related to a claim for refusal to deal. The doctrine has its origins in United States … The essential facility doctrine is applicable to intangible assets as well as physical assets. editor / Ruth Towse IV ; Rudi W. Holzhauer. The essential facilities doctrine or the ‘bottleneck’ doctrine is part of an old, if controversial, theory of antitrust liability, whereby a monopolist leverages its monopoly power to obtain a competitive advantage by denying access to an essential facility. The essential facilities doctrine is designed to oblige dominant undertakings to make available their important facilities, including intellectual property rights, for other undertakings. The essential facility doctrine is applicable to intangible assets as well as physical assets. The area of IPR under competition law is premised on the assumption that the intellectual property is properly obtained. Compulsory licencing gives rise to a conflict between IP law and competition law. The Economics of Intellectual Property. In general, it refers to a type of anti-competitive behavior in which a firm with market power uses a "bottleneck" in a market to deny competitors entry into the market. and the Essential Facilities Doctrine Reiko Aoki∗ and John Small+ August 2003 Abstract We consider compulsory licensing of intellectual property as a remedy for anti-competitive practices. Mere ownership of an intellectual property right does not confer a dominant position upon its owner. AU - Cotter, Thomas F. PY - 1999. ), Edward Elgar, 2017, 70 . The Essential Facilities Doctrine and Intellectual Property: Compulsory Licenses under EC Competition Law [English] Beschreibung: Essential facilities doctrine; compulsory licence – requirements: two markets, dominant position, prevention of the emergence of a new product, indispensable input, no objection justification: Kategorie: Essential Facilities Doctrine Reiko Aoki ∗ John Small † September 2002 Abstract We look at compulsory licensing of intellectual property as rem-edy for anti-competitive practice. Supreme Court and the European Court of Justice recently We identify aspects of intellectual property that warrants a different remedy from those using general definitions and remedies for essential facility. Supreme Court and the European Court of Justice recently INTRODUCTION A recent case in the European Union, NDC v. IMS HEALTH,' has generated interest on both sides of the Atlantic regarding the relation- ship between intellectual property and antitrust principles. R. Pitofsky, D. Patterson & J. Hooks, The Essential Facilities Doctrine Under United States Antitrust Law, 70 Antitrust L.J. involving intellectual property rights. However, courts have also declined to extend the doctrine to a wide variety of situations. the conflict in the european community between competition law and intellectual property rights: a call for legislative clarification of the essential facilities doctrine Donna M. Gitter Assistant Professor of Legal and Ethical Studies, Fordham University Schools of Business; J.D., University of Pennsylvania Law School; B.A., Cornell University. 13 Pages Posted: 6 Apr 2016 Last revised: 12 Aug 2017. wider context, the essential facilities doctrine is one expression of the venerable principle in Anglo-Saxon law favoring open access for certain. Les jugements rendus de part et d'autre de l'Atlantique dans le cadre de l'affaire Microsoft ont mis en lumière des politiques de concurrence dissonantes selon que l'on se trouve aux Etats-Unis ou en Europe. Intellectual property rights and competition law are two separate legal regimes having distinct objectives and purposes. Essential Facilities Doctrine on Intellectual ... von Martins Zwicky, Cibele - Jetzt online bestellen portofrei schnell zuverlässig kein Mindestbestellwert individuelle Rechnung 20 Millionen Titel While a thor- ough … Mere ownership of an intellectual property right does not confer a dominant position upon its owner. approach. The scientific interest of the 36(12), 2014. We identify aspects of intellectual property that could warrant a different remedy from those developed for access to physical essential facilities. In the intellectual property context, an obligation to make property available is equivalent to a requirement It is situated in the cornerstone of correlation between Competition and IP Law and emerged as an amalgam of these two sectors. involving intellectual property rights. It is worthwhile to mention here that the doctrine was originally developed to establish liability under Section 2 of the Sherman Act which prohibits monopolization of Trade. But after the Trinko case, there is no primary role of the doctrine under U.S. law and it has been accorded a subsidiary role to establish liability under the Sherman Act. The doctrine was first developed in the United States. P. MARQUARDT ET M. LEDDY, The essential Facilities Doctrine and Intellectual Property Rights : A response to Pitofsky, Patterson and Hooks : Antitrust L. J., 2003, vol. “essential facilities doctrine,” which may impose a duty upon firms controlling an “essential facility” to make that facility available to their rivals. But after the Trinko case, there is no primary role of the doctrine under U.S. law and it has been accorded a subsidiary role to establish liability under the Sherman Act. As compared to the U.S., the essential facilities doctrine has found greater acceptance in E.U. Its roots originate in the Terminal Railroad Combination case of 1912. EP - 250. Three conclusions follow: First, diversification restraints on the owners of essential facilities are inefficacious. We first examine the South African position and identify shortfalls in the analysis that has so far been provided by the courts. 414 Revue générale de droit (2009) 39 R.G.D.
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