Abusive Filing of IP Rights

17 Pages Posted: 11 Oct 2018

Date Written: September 18, 2018

Abstract

Today, there are many situations for which the possibility of applying competition law to intellectual property rights (IPRs) is recognized. However, there is considerable dispute when it comes to the originary acquisition of IPRs. Are IP registration procedures a topic for competition law, or should they be left to the correction mechanisms provided for in IP law itself? The strongest argument in favor of the parallel application of competition law is the fact that already the existence of IPRs has an impact on competition, and not only the later exercise of these rights. If the IPR has been granted due to misleading representations before the patent office, the economic effects are not compatible with the ideal of competition on the merits. Even in the absence of misleading information, the filing of blocking patents may, in exceptional circumstances, enter into conflict with competition law. If there is no perspective whatsoever to use or commercialize the patent in question, to support other innovations or to pursue further legitimate interests, and if the purpose of the patent is solely to block the development of other firms, the acquisition of that patent is abusive.

Keywords: Intellectual Property Rights, misleading information, fraud on the patent office, fraudulent patents, blocking patents

Suggested Citation

Heinemann, Andreas, Abusive Filing of IP Rights (September 18, 2018). Available at SSRN: https://ssrn.com/abstract=3251209 or http://dx.doi.org/10.2139/ssrn.3251209

Andreas Heinemann (Contact Author)

University of Zurich ( email )

Rämistrasse 74/40
Zürich, CH-8001
Switzerland

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