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Abstract:
As intellectual property rights have encountered an expansive trend throughout the world, the debate on the relation between IPRs and competition law has regained enormous attention.

The discussion about whether antitrust law is (or should) be the most appropriate instrument to constraint an over-expansionist application of IPRs has found strong supporters and opponents on both sides of the Atlantic.

However, American courts and European agencies have adopted a quite different approach in the treatment of anticompetitive conduct favored by the exploitation of an intellectual property right. Namely, American courts have shown a tendency to refrain competition law tools from interfering with intangible monopolies, while European agencies have severely constrained monopolists' conduct that - in the most common example - use IPRs to leverage their dominant position in a second market.

This paper aims at studying and comparing the diverse approaches outlined above starting the analysis from the normative and conceptual difference between American monopolization and attempt to monopolize claims and European abuse of dominant position. As we will see, significant differences exist between these doctrines which have exerted a significant impact on the way courts apply competition tools towards IPRs.

Monopolization, attempt to monopolize, abuse, dominance, intellectual property, patent, copyright, Microsoft, IMS, Datageneral, Illinois Tool, Magill, Kodak, refusal to license, unilateral conduct

Abstract:
In a century where access to information represents the key for doing business, big companies have come to realize that poor Developed Countries, whose economies are still based on agriculture and textiles, have an invaluable treasure worth billions of dollars. The varieties of plants and trees, located mostly in the Southern areas of the hemisphere, amount to a huge collection of genetic material with countless potential applications. Moreover, the value of these vast collections is further increased by the circumstance that local communities living in these areas have long studied and experimented the medicinal - as well other scientific - properties of such plants and herbs. Sometimes shamanic knowledge, for example, has reached very precise and effective results in the curing of some diseases.

While indigenous communities have their own legal system and mores regulating the way their resources, both tangible and intangible, are to be produced and enjoyed within the group, Developed Industrialized Countries often look at traditional knowledge through the lenses of modern intellectual property systems. They reason in terms of inventiveness and novelty, they look for a specific author/inventor to reward and when they do not find any of the above, they just assume they have the right to take indigenous countries' scientific knowledge without giving anything in return. Such knowledge, they claim, is in the public domain.

This paper is aimed at analyzing the current normative framework as well as the international debate surrounding the protection of biodiversity and traditional knowledge in such a way to solve the biopiracy issue and grant local communities the possibility of benefiting from a reasonable and fair exploitation of their resources by third parties.

Intellectual Property, Traditional knowledge, folklore, biodiversity, biotechnology

Abstract:
As the old millennium was coming to an end, European Competition law began a massive reform project aimed at modernizing each and every of its constituent parts. As well known, this ambitious project started with the introduction of Regulation n. 2790/1999 on vertical restraints, and its accompanying Guidelines, it followed with the Guidelines on horizontal cooperation agreements, and made all its way up till the review of the Merger Regulation.

The underlying leitmotif of these reforms has been to introduce a more economics-oriented approach to the assessment of competition cases. In practice, these reforms have resulted in a progressive erosion of per se rules in favour of the more flexible rule of reason which leaves the floor open to case by case considerations and seems better suited to take into account the appropriate circumstances (especially of economic nature) of the controversy at issue.

The turn has come now for abuses of a dominant position to go under review to determine the extent it should conform to the new mainstream trend which calls for a more substantive recourse to economics insights into the assessment of unilateral practices.

As we are about to see, European Commission's (and European competition authorities' in general) treatment of abuse cases has attracted a good deal of criticism for being rather formalistic and rigid and hence inapt to sufficiently take into consideration the economic circumstances of the cases, in particular to weigh the anticompetitive effects apparently caused by the conduct against the likely positive pro-competitive (or, more precisely, pro-consumer) efficiencies which, in the end, could tilt the balance and reverse an initial finding of abuse.

In order to do justice to these points of criticism, the European Commission has drafted a Discussion Paper on the application of Article 82 to exclusionary abuses and has called for open discussion on it. Unfortunately, the document, mainly because of its guideline style, is rather confusing and obscure. A coherent suggestion for a new approach, however, can be more easily inferred by reference to the report presented by the Economic Advisory Group for Competition Policy (hereinafter EAGCP) which the Commission has surely considered in the course of preparing its Discussion Paper.

The effects-based approach (so called to differentiate itself from the current formalistic one) apparently carries a strong economic imprint and seems aimed at correcting the early methodology adopted by European agencies and courts by introducing two substantive changes. On the one hand, the competition authorities would be asked to prove, with strong economics-based analysis and studies, the anticompetitive harm produced by the presumably abusive conduct. This with specific regard to the ultimate effect that the practice will assert on consumer welfare. On the other hand, because it is extremely complex to discern the pro- from the anti-competitive aspects within the same conduct and, as economists strongly assert, pro-competitive effects can also arise from a unilateral conduct adopted by a dominant firm, the new approach would grant defendants the faculty to plead an efficiency defense against a finding of abuse.

This change would appear, at least at a first glance, in line with the assessment of agreements in restraint of competition under Article 81 and would make the overall assessment of competition law cases uniform. Nonetheless, as I will try to demonstrate, such alignment with current assessment of (horizontal or vertical) agreements between firms is nor welcome or desirable.

abuse, dominant position, article 82, reform, EAGCP, effects-based approach, efficiency

Abstract:
The problem of the so-called 'intersection' between intellectual property and competition law - which will be dealt with mainly from the European perspective - is rooted in the apparent antinomy of the respective (direct) goals: fostering innovation through the attribution of exclusive/excluding rights on one hand, and preserving freedom of access to the market on the other.

However, IPRs do not per se confer monopolies in economic sense, since they should typically allow the entrance of substitute products onto the market. Only in some circumstances is it possible for the market power enjoyed by IPR-holders to grow into a true foreclosure of third party competition, leading to a de facto monopolization. We argue that in such cases, not simply competition is hampered but also the dynamic process of innovation is at stake. Consequently, in such cases antitrust remedies should 'march in' to preserve the ultimate goals of both branches of law.

In particular, focusing on the IT market(s), this paper will discuss whether and to what extent a right of access (typically in the form of a non-voluntary licence) to innovative 'creations' of information technologies protected by copyright or patents should be granted to third parties if the exercise of the excluding powers typically associated with IPRs would risk preventing those parties from operating as competitors on a related (downstream) market or even - more controversially - on the same market.

Antitrust, Intellectual Property, abuse of dominant position, network effects

Abstract:
Patent scope is probably one of the most debated issues in patent law generally and it has recently gained new contours thanks to the substantial scientific improvements in genetics and modern biology, which have resulted in the creation of what we now address as the biotech industry. Indeed, the particular features of research carried on genes, proteins, virus, etc. has led many to question the appropriate degree of exclusivity to be granted to the inventor who studies process and elements belonging to nature.

This multi-faceted issue has been carefully addressed by the European Directive 98/44/EC on the legal protection of biotechnological inventions which offers, especially at art. 5, significant insights to appropriately distinguish what is patentable from what is not, and to delimit the proper scope of protection.

With regard to the latter point, art. 5.3 specifies that the industrial application of a sequence or a partial sequence of a gene must be disclosed in the patent application. This is surely one of the most remarkable provision contained in the Directive. Interestingly, at a first glance some national laws implementing the European text seem all to closely follow the blueprint provided for by the Directive. However, there is a significant difference. The Directive establishes that the industrial application of a gene sequence be concretely disclosed in the patent application but, differently from national laws, the Directive does not expressly mention the need to claim the industrial application of the gene sequence.

The need to specify the concrete function performed by the genetic sequence, as codified by the French, the German and the Italian legislator, might reasonably lead one to conclude that the scope to be afforded to the patent should be limited to the industrial application disclosed. This interpretation could lead to a substantive departure from what happens in the chemical industry where patent protection (wrongly, in our modest opinion) is generally intended to be absolute.

A change towards a so called purpose-bound protection would be, in our opinion, particularly welcome, although extremely criticized in part of the patent law literature.

In what follows we will try to provide an exhaustive explanation of why we think that a narrower protection for biotechnological innovation would be more appropriate, especially in light of the peculiarities of the biotech sector.

Patent, invention, biotechnology, gene, dna, rna, splicing, second use patent, industriality, claims, purpose-bound protection

Abstract:
It is common knowledge that the old debate between competition policy and intellectual property rights has not yet found a definitive solution able to relax the present tension and, at the same time, provide courts with useful guidelines to set cases dealing with IPRs - with regard to this article, only patents and copyrights - and antitrust principles. Within this context, on a practical ground, great uncertainty has pervaded jurisdictional bodies entrusted with the task to solve controversies involving both set of laws and, in particular, it is not yet clear when and to what extent competition rules are entitled to interfere with the exclusive protection granted by intellectual property rights. This article aims at analysing the issues arising from this thorny interplay from a European perspective, especially with regard to the case NDC Health v. IMS Health.

Antitrust, Intellectual Property, abuse of dominant position, network effects

Abstract:
This recent decision of the Italian Supreme Court seems to put to an end the judicial saga of the Playstation's "mod chip" in Italy.

The Italian Supreme Court has eventually found the producer of mod chip (the equipment capable of circumventing Sony's technological protection measure) liable under art. 171-ter, lett. fbis), Italian Copyright Law, implementing the provision codified at art. 6(2), of the Information Society Directive. According to the Court, since videogames cannot be classified as mere software, the circumvention at issue had to be assessed in light of such provision encompassing a stronger burden of proof to be met by defendants. However, not much attention has been paid to the circumstance that the mod chip allowed circumvention of a measure placed on the console rather than the videogame itself. This fact may prove to be a crucial aspect in the analysis because the elusion of technological protection measures placed on software is disciplined by a different provision bearing a lighter burden of proof for defendants to rebut an initial finding of liability. In fact, in the latter case they only need to prove that other uses exist of the technology they produce that are not infringing.

Because today many firms active in more than one market use TPMs to technically bundle together two (or more) products, exploiting the circumstance that at least one of them is protected by copyright, the Italian Supreme Court decision may turn quite problematic in its effects. In fact, while surely strengthening copyright owners' position, especially in digital markets, it may also provide them the power to unduly distort competition in neighboring markets.

DRM, Tecnological Protection Measures, Sony, Playstation 2, console, TPM, anticircumvention, Information Society Directive, Copyright