The Effect of Competition Law on Patent Remedies

Abstract

Although competition law and IP law probably pursue complementary goals, competition laws can:

(i) affect remedies available for patent infringement; and/or otherwise,

(ii) limit the conduct of patentees, particularly when transferring or licensing their patents.

This chapter discusses the cases in which tensions between the protection of patents in complex products and the competition laws have arisen or may arise, particularly as regards the ability of owners of standard essential patents (SEPs) to monetise their patents either by seeking an injunction against implementers or by refusing to grant licences complying with previously given commitments—generally, commitments to license on fair, reasonable and nondiscriminatory (FRAND) terms. This chapter also examines potential competition law constraints on the pricing of patent licences, other licensing terms, multi-level licensing and level discrimination, patent pools, sale of patent portfolios and patent acquisitions.

Keywords: competition law, patent law, complex products, goals, remedies, injunctions, licensing

JEL Classification: K21, L40, L41, L42