Antitrust and Intellectual Property in the United States and the European Union

The Interplay Between Competition Law and Intellectual Property - An International Perspective, Gabriella Muscolo and Marina Tavassi eds., Kluwer Law International, Forthcoming

George Mason Law & Economics Research Paper No. 18-23

32 Pages Posted: 27 Aug 2018 Last revised: 28 Aug 2018

See all articles by Douglas H. Ginsburg

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School

Damien Geradin

Tilburg Law and Economics Center (TILEC); University of East Anglia (UEA) - Centre for Competition Policy; Geradin Partners

Keith Klovers

Latham & Watkins LLP

Date Written: August 23, 2018

Abstract

The United States and the European Union each have a strong legal regime designed both to protect competition and to foster innovation. Because the competition and intellectual property (IP) laws are occasionally in some tension, each jurisdiction has developed detailed legal rules that govern when and how competition law restrictions apply to IP rights. Recognizing that innovation benefits consumers, each regime presumes a patentee may lawfully use, license, and sell its IP rights freely unless that activity would impair competition on the merits by (i) coordinating with other entities to restrain trade unreasonably; (ii) unilaterally acquiring (in the U.S.) or exercising (in the EU) market power; or (iii) transferring IP through an anticompetitive merger or acquisition. This chapter summarizes and briefly compares the applicable law in the U.S. and the EU, and then identifies the most prominent differences between the two regimes. Note that, because most of the applications discussed herein concern patents, the term patents is used throughout to refer to all kinds of IP unless the difference matters.

Keywords: FRAND, SEPs, Federal Trade Commission, FTC, patent, Sherman Act, Clayton Act, Standard Essential Patent, TTBER, Article 101 TFEU, Article 102 TFEU

JEL Classification: K2, K21, L4, L40, O3, O34, O38

Suggested Citation

Ginsburg, Douglas H. and Geradin, Damien and Klovers, Keith, Antitrust and Intellectual Property in the United States and the European Union (August 23, 2018). The Interplay Between Competition Law and Intellectual Property - An International Perspective, Gabriella Muscolo and Marina Tavassi eds., Kluwer Law International, Forthcoming, George Mason Law & Economics Research Paper No. 18-23, Available at SSRN: https://ssrn.com/abstract=3237788 or http://dx.doi.org/10.2139/ssrn.3237788

Douglas H. Ginsburg (Contact Author)

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Damien Geradin

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

University of East Anglia (UEA) - Centre for Competition Policy ( email )

UEA
Norwich Research Park
Norwich, Norfolk NR47TJ
United Kingdom

Geradin Partners ( email )

Avenue Louise 475
Brussels
Belgium

Keith Klovers

Latham & Watkins LLP ( email )

555 Eleventh Street, NW
Suite 1000
Washington, D.C.
United States

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