Competition law and intellectual property
Produced in partnership with Suzanne Rab of Serle Court
Competition law and intellectual property

The following Competition guidance note Produced in partnership with Suzanne Rab of Serle Court provides comprehensive and up to date legal information covering:

  • Competition law and intellectual property
  • Key themes on the interplay between competition law and IPRs
  • Patenting practices
  • Licensing of technology
  • Patent pools and standard setting
  • Compulsory licensing of IPR
  • Unreasonable licensing terms and conditions
  • Litigation by IP owners
  • Competition law and copyright

The challenges of balancing intellectual property rights (IPRs) and competition law are not new. At first sight, the aims of IPRs and competition law may appear to be in opposition. Broadly stated, IPR holders have rights to control access to and charge others for use of their monopoly rights. Competition law aims to promote open markets and curtail abuse of market power. The Commission has acknowledged the potential concerns arising from the interaction between IPRs and competition law and the perceived tension between them. It has also recognised that the two are, in fact, complementary, with each informing the other, so that a balancing exercise is required when determining whether any exercise of IPRs is compatible with competition law. Even though intellectual property laws and competition laws are viewed as complementary, controversial issues can arise where competition law is applied to business activities relating to IPRs (eg refusal to license).

While the basic principles of competition law enforcement of Articles 101 and 102 TFEU have been applied to cases involving IPRs for many years, the Commission has confronted the apparent tension between IPRs and competition in a number of novel interventions. The enforcement activity by the Commission in the pharmaceutical and mobile device industries in particular has raised new questions for the enforcement of competition law in IP-intensive cases. The issue of