The impact of the ‘exceptional circumstances’ on the incentives to innovate in the context of refusal to supply and intellectual property rights
(2021) JAEM03 20211Department of Law
Faculty of Law
- Abstract
- The ‘exceptional circumstances’ test was created by the CJEU in order to strike a compromise between the goals of intellectual property law and those of competition law under Article 102. The presence of an intellectual property rights does not always imply the presence of a dominant position. When an undertaking is considered dominant, it is still permitted to refuse the grant of a licence to its competitors. Such a right to exclude is susceptible to an exception under the ‘exceptional circumstances’ test. If a dominant undertaking refuses to grant a license despite the criteria of the test being fulfilled, then it is abusing its position. The criteria of the test are as follow: (i) the product is indispensable; (ii) such a refusal... (More)
- The ‘exceptional circumstances’ test was created by the CJEU in order to strike a compromise between the goals of intellectual property law and those of competition law under Article 102. The presence of an intellectual property rights does not always imply the presence of a dominant position. When an undertaking is considered dominant, it is still permitted to refuse the grant of a licence to its competitors. Such a right to exclude is susceptible to an exception under the ‘exceptional circumstances’ test. If a dominant undertaking refuses to grant a license despite the criteria of the test being fulfilled, then it is abusing its position. The criteria of the test are as follow: (i) the product is indispensable; (ii) such a refusal prevents the emergence of a new product or a technical development for which there is a demand; (iii) such a refusal leads to the elimination of effective competition; (iv) the refusal cannot be justified.
The evolution of the test in Microsoft demonstrates the CJEU’s willingness to broaden the requirements. Some authors believe that the broadening of the test and, in particular, the condition regarding the ‘technical development’ gives ways for third parties to require the application of the ‘exceptional circumstances’ test. According to those authors, such a development impact the incentives to innovate due to the fear of businesses to lose the rewards which comes alongside with an intellectual property rights. On the other hand, other scholars believe that such an impact is limited. This subtlety stems from the fact that the Commission and the CJEU are likely to apply the test only in restricted circumstances. Microsoft’s requirements may not be used again in future cases since such conditions might have been caused by the circumstances of the case. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/9048312
- author
- Mariotte, Clara LU
- supervisor
-
- Julian Nowag LU
- organization
- course
- JAEM03 20211
- year
- 2021
- type
- H2 - Master's Degree (Two Years)
- subject
- keywords
- Competition law Article 102 Refusal to supply Exceptional circumstances test Innovation
- language
- English
- id
- 9048312
- date added to LUP
- 2021-06-18 10:46:29
- date last changed
- 2021-06-18 10:46:29
@misc{9048312,
abstract = {{The ‘exceptional circumstances’ test was created by the CJEU in order to strike a compromise between the goals of intellectual property law and those of competition law under Article 102. The presence of an intellectual property rights does not always imply the presence of a dominant position. When an undertaking is considered dominant, it is still permitted to refuse the grant of a licence to its competitors. Such a right to exclude is susceptible to an exception under the ‘exceptional circumstances’ test. If a dominant undertaking refuses to grant a license despite the criteria of the test being fulfilled, then it is abusing its position. The criteria of the test are as follow: (i) the product is indispensable; (ii) such a refusal prevents the emergence of a new product or a technical development for which there is a demand; (iii) such a refusal leads to the elimination of effective competition; (iv) the refusal cannot be justified.
The evolution of the test in Microsoft demonstrates the CJEU’s willingness to broaden the requirements. Some authors believe that the broadening of the test and, in particular, the condition regarding the ‘technical development’ gives ways for third parties to require the application of the ‘exceptional circumstances’ test. According to those authors, such a development impact the incentives to innovate due to the fear of businesses to lose the rewards which comes alongside with an intellectual property rights. On the other hand, other scholars believe that such an impact is limited. This subtlety stems from the fact that the Commission and the CJEU are likely to apply the test only in restricted circumstances. Microsoft’s requirements may not be used again in future cases since such conditions might have been caused by the circumstances of the case.}},
author = {{Mariotte, Clara}},
language = {{eng}},
note = {{Student Paper}},
title = {{The impact of the ‘exceptional circumstances’ on the incentives to innovate in the context of refusal to supply and intellectual property rights}},
year = {{2021}},
}