Competition, Innovation and Intellectual Property Rights

Professors Heike SCHWEITZER and Wolfgang KERBER (FB Fellow)

Thursdays 8.45-10.45, Sala Triaria

secretary Marlies Becker|

starts on 8 October 2009

 

Seminar description

The interaction between competition, innovation and intellectual property rights (IPRs) remains one of the most controversial and most interesting competition issues. The innovative potential of competition is among the essential justifications for protecting competition in the first place. Simultaneously, intellectual property rights and the exclusivity rights they entail are primarily justified as promoting innovation – even though they may conflict with competition policy at times.

The exact interrelation between competition, innovation and IPRs remains disputed – and with it the principles according to which restrictions of competition may be justified based on an “innovation-defence”. The Microsoft case provides a prominent recent example for a setting in which this uncertainty has become practical.

This seminar shall revisit the competition-innovation interface with a view to the construction and interpretation of intellectual property rights. We will look at the more theoretical debates on innovation and the justification of IPRs in the economic and legal literature, and we will look, by way of example, at areas and cases where the tension with competition law becomes concrete.

By going through the intersections of patent law, copyright law and trademark law with competition law we hope to identify some general principles how exclusive rights can or should be construed so as to promote innovation and competition, and what the role of competition law should be in mediating this interface. The seminar is co-taught by an economist and a lawyer, and we will therefore address all issues and cases both from an economic and a legal angle.

The seminar is research-oriented, and requires some general prior knowledge in intellectual property law and competition law. All participants will be expected to prepare a presentation for one of the seminar sessions.

 

Sessions

1. Introduction – The interaction between competition, innovation and IPRs. Economic theory and legal principles
2. IPRs and the protection of the commons – do IPRs foster or impede innovation? The theoretical debate
3. Patents and competition / patent pools
4. Copyrights and competition
5. Copyright and competition, part 2: the role of Collecting Societies and competition law
6. Trade marks and competition
7. Licensing IPRs in the shadow of competition law
8. Access to IPRs? Compulsory licensing as a competition law remedy – Microsoft and its legacy
9. Standard-setting in the light of Art. 81 and Art. 82
10. The role of IPRs in merger analysis