Anderman, Steven D. --- "Patents and Competition Law: Some Features of the New Interface" [2011] ELECD 975; in Arezzo, Emanuela; Ghidini, Gustavo (eds), "Biotechnology and Software Patent Law" (Edward Elgar Publishing, 2011)

Book Title: Biotechnology and Software Patent Law

Editor(s): Arezzo, Emanuela; Ghidini, Gustavo

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800402

Section: Chapter 5

Section Title: Patents and Competition Law: Some Features of the New Interface

Author(s): Anderman, Steven D.

Number of pages: 24

Extract:

5. Patents and competition law: some
features of the new interface
Steven D. Anderman

INTRODUCTION

The regulation of the exercise of intellectual property rights (IPRs) by
EU competition law has begun increasingly to apply to patents as well as
industrial copyright and design rights. There are recent cases of misuse of
the patent system within the pharmaceutical industry amounting to abuse
of dominance1 and patent settlements taking the form of anticompeti-
tive reverse or delay payments aiming to prevent the entrance of gener-
ics into existing markets.2 The field of standard setting and technology
pools has attracted the attention of the competition authorities not only
because of cases of patent ambush3 and FRAND (Fair, Reasonable and
Non-Discriminatory Terms) ambush4 but also because of competition
concerns with the process of selecting patented technologies and making
licensing arrangements. Although the cases thus far resulting in a remedy
of a compulsory licence of an IPR under Article 102 TFEU have mainly
concerned the owners of industrial copyright such as computer programs

1 Case T-321/05 Astra Zeneca v Commission (Judgment of the General Court

dated 1 July 2010) (`Astra Zeneca'). See also the recent Bohringer case being inves-
tigated by the Commission to determine whether Bohringer misused patents to
exclude competitors. The Commission's charges concerned `misuse of the patent
system in order to exclude potential competition in the area of chronic obstructive
pulmonary disease (COPD) drugs.
2 European Commission Pharmaceutical Sector Inquiry Final Report, 8

July 2009. available at ...