Transcript Interface Between Competition and Intellectual Property

Interface Between Competition and Intellectual Property
Compulsory Licensing, Essential Facilities and Duty
to Deal
General Principles
(I)
• Importance of Protecting Property Rights
• Intellectual Property as subset of Property
Rights with Which Firms Compete
• Consumer Welfare Maximization Achieved
when Inter-Platform/Inter-Brand Competition
is Maximized
• Firms Competing for Temporary Monopolies
over Distinct Platforms
General Principles (II)
•
“The Intellectual Property Laws and the Antitrust Laws share
the common purpose of promoting innovation and enhancing
consumer welfare” (Antitrust Guidelines of Licensing of
Intellectual Property, DOJ/FTC, 1995)
•
Cost to Innovation of Limiting IP rights for competition
reasons significant
– “Allowing Competition Policy to trump property rights is in all but
the most egregious of situations, an extraordinary result…”
(Robert Taylor, 2000)
•
Intellectual Property does not necessarily confer Market
Power
•
The Need for Accurate Market Definition
General Principles (III)
• Restrictions By Owner of Third Party Use of
Intellectual Property may serve procompetitive ends
• Refusals to Deal, Compulsory Access and
Essential Facilities Doctrines must be
analyzed in light of Pro-Competitive
Efficiencies
• Invalidly Granted Rights
• Scope of Patent Protection
Licensing Issues
•
Focus on Compulsory Licensing
•
Roots of the Compulsory Licensing Remedy
•
Dawson v Rohm & Haas – “a rarity in our patent system…”
•
TRIPS Article 31 requirements
– EU Submission to WTO Trade and Competition Group (1998)
• “Core rationale for [IPR] protection…create dynamic
efficiency that is pro-competitive and outweighs any short
term allocative efficiency gains…
• Advocates very limited grounds for finding of anticompetitive abuse of a monopoly right which supports
grants of compulsory license.
•
Danger of court-imposed compulsory access
•
Impracticality of Remedy
Duty to Deal and Essential
Facilities
• Origin of Essential Facility Doctrine
– Not Accepted by Supreme Court
• Meaning of Essentiality
• Leading cases -- Aspen Skiing, Trinko,
Linkline; Diminishing Role for Doctrine
• Never Used in IP context in US courts
• Twin Labs – The Role of Public Subsidy
• Danger of Courts Acting as Regulators,
Trinko, Linkline, AT&T Divestiture
Antitrust Duty to Deal
• When does it apply?
• Requirement for “Anticompetitive action by a
monopolist that is intended to limit competition in the
downstream market.” (Intel v. Intergraph)
• “No court should impose a duty to deal that it cannot
explain or adequately and properly supervise” (Trinko)
• Law of Unintended Consequences
– Ensure that Pro-Competitive Behavior is not discouraged
• Limited nature of duty
Duty To Deal/Regulatory
Framework
• Interface with Regulatory Framework
– Telecom as example
• Duty to Deal Imposed by Regulatory
Framework
• Telecoms – Differing Goals of 1996 Telecom
Act and Sherman Act
• Risk of False Positives
• Difference Between Presentation of Antitrust
Claim and General Regulatory Obligations
Summary
• Competition and Intellectual Property have same
innovation enhancing goal
• Impact of technology is to put substantial pressure on
costs and drive firms to seek temporary monopoly over
platforms which compete
• Consumer welfare is enhanced by maximization of
inter-platform competition
• Competition agencies should be cautious in
implementing solutions that disrupt inter-platform
competition
Presentation to Chinese Inter-Agency Delegation
Shanker Singham
Squire Sanders & Dempsey, L.L.P.
Delivered at US Chamber of Commerce
March, 2009