Kolstad, Olav --- "Competition Law and Intellectual Property Rights – Outline of an Economics-based Approach" [2008] ELECD 243; in Drexl, Josef (ed), "Research Handbook on Intellectual Property and Competition Law" (Edward Elgar Publishing, 2008)

Book Title: Research Handbook on Intellectual Property and Competition Law

Editor(s): Drexl, Josef

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420475

Section: Chapter 1

Section Title: Competition Law and Intellectual Property Rights – Outline of an Economics-based Approach

Author(s): Kolstad, Olav

Number of pages: 24

Extract:

1 Competition law and intellectual property
rights ­ outline of an economics-based
approach
Olav Kolstad



1 Competition law and IP law ­ in conflict or pursuing a common
aim?
From a competition law point of view intellectual property rights (IPRs) may
be viewed as a means to reduce competition. An IPR gives the right holder a
right hindering others from offering the protected product to the market in
competition with the IPR holder. An IPR may also be used to restrict compe-
tition between licensees given the right to produce a protected product. EC
Treaty Articles 81 and 82 protect the market mechanism from anti-competi-
tive conduct. If national legislation on IPRs gives the right holders the possi-
bility to restrict competition, the logical response from the EC competition
rules is to censor anti-competitive conduct based on IPRs.
The relationship between EC Treaty Articles 81 and 82 and IP law is not
necessarily one of conflict. It can be argued that competition law and IP law
share the same economic objectives. If the two sets of rules are interpreted
against the background of a common aim, possible conflicts between compe-
tition law and IP law can be reduced. In section 2, I will outline a theoretical
framework for an economics-based analysis of the common goal of competi-
tion and IP law. In section 3, I will apply the theoretical framework developed
in section 2 in the interpretation of Articles 81 and 82.

2 The theoretical framework ­ an outline

...