The interface between IPRs and Competition Law : when does the integration of IPR protected products amount to illegal tying and bundling under EU and U.S. law?

Abstract

The thesis seeks to address the interface between Intellectual Property Rights (IPRs) and Competition Law whilst ensuring a balance between monopolies and competition. It addresses the exercise of IPRs when these amount to illegal tying and bundling under EU and U.S. law. An attempt is made to explain that the perception concerning Intellectual Property (IP) laws favouring monopolistic rights and competition laws mitigating this effect is an exaggeration. IPRs must be seen as a way of protecting assets that possess economic value. For this reason emphasis is made on the need for strong enforcement of intellectual property rights. The worldwide progression in IPRs is proof of the strongest interest in protecting IP. Strong enforcement is possible through the European Patent Office (EPO) and World Intellectual Property Organisation (WIPO) vehicles. Ensuring the required degree of protection for holders of IPRs stimulate an ongoing interest to invest in R&D and promote innovation. Determining the anti competitive effect or indeed the pro-competitive effects of tying and bundling intellectual property rights is a necessary exercise to quantify the economic benefits and the economic disadvantages for consumers. All this is seen against the scenario of the legal provisions concerning tying and bundling. In this province of commercial activity this thesis underlines how law and economics can function together. The point is made that there is still no universally accepted definition for 'abuse of IPRs'. For purposes of the illustration, the landmark Microsoft cases in the United States (U.S.) and the European Union (EU) are placed in focus. This study explains the four-pronged approach to tying and bundling under U.S. law and the five-pronged test that is applied to Attention is placed on the emerging attitudes in the legal doctrine concerning tying and bundling on both sides of the Atlantic, with a clear move from the per se rule towards a rule of reason approach.