Competition law and IPdriven business models negotiating the maze

1
Competition law and IP-driven business models
negotiating the maze

• Becket McGrath
• Partner, EU Competition Group

2
Competition and IP Law

• Competition law vs IP Law
• or
• Competition law plus IP law?

3
Competition and IP Law

• Modern understanding of these two disciplines
  is that intellectual property and antitrust laws
  work in tandem to bring new and better
  technologies, products, and services to consumers
  at lower prices.
• Antitrust Enforcement and Intellectual Property
  Rights Promoting Innovation and Competition -
  DoJ and FTC Document - April 2007

4
Competition cases involving IP Art 81

• Distribution/unilateral licensing
• Consten and Grundig v Commission
• Silhouette
• Windsurfing
• Moosehead
• Nungesser
• Coditel v Ciné Vog Films (Coditel (No.2))
• Hag II
• Technology Transfer Block Exemption
• Apple iTunes
• Collective licensing
• Sports rights (FAPL, UEFA, DFB, RCA v. OFT,
  BAGS v. AMRAC)
• Collecting societies (IFPI Simulcasting, GEMA,
  CISAC)
• Audiovisual rights (BBC Enterprises, Eurovision)
• Standard setting/technology pools
• Philips Matsushita
• MPEG-2

5
Competition cases involving IP Art 82

• Refusals to license
• Volvo v. Veng
• Tiercé Ladbroke v. Commission
• Magill
• IMS
• Microsoft (server interoperability)
• Excessive pricing
• Attheraces v. British Horseracing Board
• Discriminatory pricing
• Kanal 5 v STIM
• EC Qualcomm case
• Abuse of process patent hold up/ambush
• BBI/Boosey Hawkes
• Broadcom v. Qualcomm (s.2 Sherman Act case)
• Rambus (US and EC cases)
• AstraZeneca

6
Not forgetting Art 28 and 30

• EMI v. CBS
• Silhouette v. Bourdon
• Sebago
• Zino Davidoff
• Levi Strauss
• Ideal Standard
• Terrapin v. Terranova
• Phil Collins v. Imrat
• Deutsche Grammophon
• GEMA
• Basset v. SACEM
• Warner Bros v. Christiansen

7
Competition law issues for IP-driven businesses

• Value may depend on co-ordination between (actual
  or potential) competitors (eg standard setting,
  collecting societies)
• Need for effective IPR protection may require
  tight control over use of rights/access to
  standards and onward licensing (eg Apple iPod)
• Successful innovation, enhanced by network
  effects, may rapidly lead to dominance, which
  changes the rules of the game (Microsoft, Apple
  iPod, Google)
• Once established, such dominance may be
  persistent (eg IBM)
• Business model may depend on exclusivity (eg film
  rights)
• Nebulous nature of IP-based products and speed of
  development makes market definition difficult
• BUT

8
Is IP really so different?

• The right to exclude does deserve protection
• Type of conduct, and the market context, is
  likely to be more important than whether the case
  involves IP/similar rights (eg collecting
  societies interchange fees)
• General enforcement context (eg pre- or
  post-Modernisation?) and policy (eg the single
  market imperative) may well be more important in
  practice than any specific policy on
  IP/innovation
• Much EC intervention flows from the national
  status of most IPRs, rather than concerns over
  the policy behind IPRs, as such

9
Competition law and IP-driven business models
negotiating the maze

• Becket McGrath
• Partner, EU Competition Group
• becket.mcgrath_at_blplaw.com

This document provides a general summary only and
is not intended to be comprehensive. Specific
legal advice should always be sought in relation
to the particular facts of a given situation.