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Mandatory Licensing Under Article 82 EC

Veidemane, Zane (2004)
Department of Law
Abstract
Intellectual property rights have become an extremely important asset in the contemporary world. In the same time European Competition authorities have proved that they are willing to intervene with the exercise of those rights by, amongst other things, requiring mandatory licence. The aim of this paper is to find an answer to the question under what circumstances does the refusal to grant a licence amount to infringement of Article 82 EC. The first part of the paper discusses evolution and functioning of IPRs as well as EC competition regime, concluding that both regimes have a tendency to clash, since their aims are, at least to some extent, contradictory&semic and that it is far from clear what to do when those two regimes clash. The... (More)
Intellectual property rights have become an extremely important asset in the contemporary world. In the same time European Competition authorities have proved that they are willing to intervene with the exercise of those rights by, amongst other things, requiring mandatory licence. The aim of this paper is to find an answer to the question under what circumstances does the refusal to grant a licence amount to infringement of Article 82 EC. The first part of the paper discusses evolution and functioning of IPRs as well as EC competition regime, concluding that both regimes have a tendency to clash, since their aims are, at least to some extent, contradictory&semic and that it is far from clear what to do when those two regimes clash. The second part of the paper briefly describes Article 82 EC as such and the way it applies to IPRs. A conclusion is made that Article 82 EC does apply to IPRs, however, it interferes only with exercise, not existence of IPRs. Besides, this interference can take place only in exceptional circumstances. This part of the paper is concluded by description of cases where refusal to grant a licence has been at stake. The third part of this paper analyses circumstances in which mandatory licence may be required. At first, the broader category of cases on refusal to deal is described and analysed. Conclusion is made that the essential facility doctrine is equally applicable to IPRs and other types of property. Then elements of the mandatory licensing test proposed in IMS Health are analysed. Those include indispensability, creation of a new product, elimination of competition on a secondary market and existence of objective justification. A conclusion is made that it is close to impossible to come up with a definite interpretation of those elements. Finally, the issue of existence of another set of conditions which could be deemed by the Court to amount to exceptional circumstances is discussed. The conclusion is made that there definitely are other circumstances besides those affirmed in IMS Health that could amount to exceptional circumstances for the purpose of requiring compulsory licence. In the fourth part of this paper a conclusion is made that, as for now, holders of IPRs and those wishing to obtain a licence have to remain in a mist of legal uncertainty about the exact circumstances in which the mandatory licence can be granted. Besides, cases on mandatory licensing is a rare phenomena, therefore years could pass until any further developments in the field take place. (Less)
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author
Veidemane, Zane
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
European Affairs
language
English
id
1554805
date added to LUP
2010-03-08 15:22:38
date last changed
2010-03-08 15:22:38
@misc{1554805,
  abstract     = {Intellectual property rights have become an extremely important asset in the contemporary world. In the same time European Competition authorities have proved that they are willing to intervene with the exercise of those rights by, amongst other things, requiring mandatory licence. The aim of this paper is to find an answer to the question under what circumstances does the refusal to grant a licence amount to infringement of Article 82 EC. The first part of the paper discusses evolution and functioning of IPRs as well as EC competition regime, concluding that both regimes have a tendency to clash, since their aims are, at least to some extent, contradictory&semic and that it is far from clear what to do when those two regimes clash. The second part of the paper briefly describes Article 82 EC as such and the way it applies to IPRs. A conclusion is made that Article 82 EC does apply to IPRs, however, it interferes only with exercise, not existence of IPRs. Besides, this interference can take place only in exceptional circumstances. This part of the paper is concluded by description of cases where refusal to grant a licence has been at stake. The third part of this paper analyses circumstances in which mandatory licence may be required. At first, the broader category of cases on refusal to deal is described and analysed. Conclusion is made that the essential facility doctrine is equally applicable to IPRs and other types of property. Then elements of the mandatory licensing test proposed in IMS Health are analysed. Those include indispensability, creation of a new product, elimination of competition on a secondary market and existence of objective justification. A conclusion is made that it is close to impossible to come up with a definite interpretation of those elements. Finally, the issue of existence of another set of conditions which could be deemed by the Court to amount to exceptional circumstances is discussed. The conclusion is made that there definitely are other circumstances besides those affirmed in IMS Health that could amount to exceptional circumstances for the purpose of requiring compulsory licence. In the fourth part of this paper a conclusion is made that, as for now, holders of IPRs and those wishing to obtain a licence have to remain in a mist of legal uncertainty about the exact circumstances in which the mandatory licence can be granted. Besides, cases on mandatory licensing is a rare phenomena, therefore years could pass until any further developments in the field take place.},
  author       = {Veidemane, Zane},
  keyword      = {European Affairs},
  language     = {eng},
  note         = {Student Paper},
  title        = {Mandatory Licensing Under Article 82 EC},
  year         = {2004},
}