essential facilities doctrine and intellectual property

The Application of the essential facilities doctrine to intellectual property has been criticized in the European Union and the United States. involving intellectual property rights. 414 Revue générale de droit (2009) 39 R.G.D. Competition Law and Intellectual Property Max-Planck Conference des Max-Planck-Instituts für Geistiges Eigentum, Wettbewerbs- und Steuerrecht Location: Kloster Seeon The essential facilities doctrine (sometimes also referred to as the essential facility doctrine) is a legal doctrine which describes a particular type of claim of monopolization made under competition laws. The scientific interest of the Compulsory licensing is the remedy most often used when the intellectual property owner is abusing market power. 4. Essential Facilities Doctrine and Intellectual Property Rights: Approaches under the Competition Law The Doctrine is applicable to both private and state-owned companies. 36(12), 2014. T1 - Intellectual Property and the Essential Facilities Doctrine. Denying access to an essential facility may amount to illegal monopolization (Section 2 of the … right course is to abandon the doctrine altogether. Cover Page Footnote . The purpose of the doctrine is to impose upon an undertaking in possession of an important and unique facility a duty to give access to the facility to other undertakings which cannot pursue their own activity without such access. … In the Microsoft case, the Court of First Instance applied the doctrine, but it lowered the standards for the imposition of a compulsory license considerably. wider context, the essential facilities doctrine is one expression of the venerable principle in Anglo-Saxon law favoring open access for certain. The Economics of Intellectual Property. over open access in other fields. The “essential facilities” doctrine establishes an exception to the prevailing principle that one competitor – even one with substantial market power – is not obliged to share its assets and resources with actual or potential rivals. 414 Revue générale de droit (2009) 39 R.G.D. Yong Huang, Elizabeth Xiao-Ru Wang, and Roger Xin Zhang, 22 George Mason Law Review 1103-1126, 2015 . In the Microsoft case, the Court of First Instance applied the doctrine, but it lowered the standards for the imposition of a compulsory license considerably. The Essential Facilities Doctrine obliges under competition law the dominant owner of an essential facility to grant access to third parties on non-discriminatory terms. Intellectual property. ‘Patent thickets’ 4 are also pointed out 3Article 31(b) of the TRIPs Agreement. We first examine the South African position and identify shortfalls in the analysis that has so far been provided by the courts. Compulsory licencing gives rise to a conflict between IP law and competition law. The essential facilities doctrine imposes on owners of essential facilities a duty to deal with competitors. ER - The doctrine was first developed in the United States. EP - 250. editor / Ruth Towse IV ; Rudi W. Holzhauer. Sergio Baches Opi Uría & Menéndez Cotter, Thomas F. / Intellectual Property and the Essential Facilities Doctrine. 43(4), 2012. Moreover, it is very much pertinent to elaborate the extent to which the essential facilities doctrine can be made applicable in a given situation and time. [T]he essential facilities doctrine is widely criticized, by pretty much everyone. Supreme Court and the European Court of Justice recently Foreign jurisdicti ¶5 In the case law and academic literature on the essential facilities doctrine, one can find many references to this conflict. Three conclusions follow: First, diversification restraints on the owners of essential facilities are inefficacious. The essential facility doctrine is applicable to intangible assets as well as physical assets. The essential facilities doctrine or the ‘bottleneck’ doctrine is part of an old, if controversial, theory of antitrust liability, whereby a monopolist leverages its monopoly power to obtain a competitive advantage by denying access to an essential facility. The essential facilities doctrine was first developed in cases where a dominant firm refused to supply a physical facility to other firms. Hou (2012) Hou, Liyang, 2012. Its roots originate in the Terminal Railroad Combination case of 1912. Intellectual property rights and competition law are two separate legal regimes having distinct objectives and purposes. The essential facilities doctrine is famously disreputable. JO - Antitrust Bulletin. THE ESSENTIAL FACILITIES DOCTRINE AND INTELLECTUAL PROPERTY RIGHTS: A RESPONSE TO PITOFSKY, PATTERSON, AND HOOKS PAUL D. MARQUARDT MARK LEDDY* I. Dominant position is determined according to the conditions of the relevant market. VL - 44. Conclusions follow. 43(4), 2012. In the intellectual property context, an obligation to make property available is equivalent to a requirement Essential Facilities Doctrine Reiko Aoki ∗ John Small † September 2002 Abstract We look at compulsory licensing of intellectual property as rem-edy for anti-competitive practice. That is, compulsory licensing would be socially desirable and the foreign technology owner will still patent in Australia or New Zealand because otherwise it will obtain no profit at It is used to tackle exceptional cases where a dominant firm leverages its monopoly power and refuses to deal with a competitor by denying access to a so-called essential product or service, thus foreclosing the market. Developing countries may draw interesting lessons from the application of the concept of refusal to deal and the essential facilities doctrine in developed countries. Different assets have been qualified as essential facilities: physical infrastructures like bridges or ports, intellectual property rights and sets of information. approach. Intellectual property law is built on constitutional foundations and is underpinned by the twin freedoms of freedom of expression and freedom of economic enterprise. One is the essential facilities doctrine, discussed below. Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. We identify aspects of intellectual property that could warrant a different remedy from those developed for access to physical essential facilities. 10 Id. The doctrine was first developed in the United States. Another factor that makes the essential facilities doctrine particularly important is the increase in the number of situations in which the monopolist's dominance depends on intellectual property. Compulsory licencing gives rise to a conflict between IP law and competition law. and the Essential Facilities Doctrine Reiko Aoki∗ and John Small+ August 2003 Abstract We consider compulsory licensing of intellectual property as a remedy for anti-competitive practices. What is the essential facilities doctrine? As with railroads, the doctrine can once again open markets while preserving network-based efficiencies. In International Review of Intellectual Property and Competition Law, Vol. Second, the doctrine should not be applied to intellectual property. The essential facilities doctrine is a legal doctrine which describes a particular type of claim of monopolization made under competition laws. community properly understands and applies Western antitrust/intellectual property concepts like the “essential facilities doctrine Recently, FTC .” Commissioner Ohlhausen pointed out that some in China misunderstand the essential facilities doctrine in the United States and its use in a recent FTC R. Pitofsky, D. Patterson & J. Hooks, The Essential Facilities Doctrine Under United States Antitrust Law, 70 Antitrust L.J. Even commentators who approve of applying the essential facilities doctrine to intellectual property in appropriate cases share the view that on this point the EU and the US clearly diverge.5 This paper argues that, at least in the context of copyright law, this analysis is at best incomplete and at worst incorrect. This is just a quick, general and preliminary comment on the development of the doctrine of essential facilities. Compulsory licensing is the remedy most often used when the intellectual property owner is abusing market power. Some Insights from the Chinese Regulation. the conflict in the european community between competition law and intellectual property rights: a call for legislative clarification of the essential facilities doctrine Donna M. Gitter Assistant Professor of Legal and Ethical Studies, Fordham University Schools of Business; J.D., University of Pennsylvania Law School; B.A., Cornell University. After reading some papers (some of them also available in the ssrn here), I have a feeling that both IP and Competition Lawyers are in favour of a more restrictive application of the "essential facilities" doctrine to intellectual property. II. extent, to the ownership of valuable intellectual property.”); see also A Heimler and A Nicita, ‘Intellectual property right-based monopolies and ex-post competition: Some Reflections on the Essential Facilities Doctrine’, (2000) Roma, Villa Mondragone 26-28 (Noting the growing number of cases involving IPRs and competition law.) Law Offices of Curtis v Trinko LLP held that the Supreme Court has never recognised the essential facilities doctrine. Specifically, this paper challenges this conventional wisdom Earlier this year, ICLE held a conference with the Oxford Union on the theme of innovation, competition and economic growth with some of our favourite scholars. The essential facilities doctrine remedy for this anticompetitive practice is the imposition of an obligation … 2011, n° 1724 413-453 inférieures américaines, les conditions de son application aux Etats-Unis, ainsi que la place importante occupée par les cas impliquant des droits de propriété intellectuelle. We identify aspects of intellectual property that warrants a different remedy from those using general definitions and remedies for essential facility. 5 In more recent cases, however, the European courts have also held a dominant firm's refusal to license intellectual property 4 However, it is also possible to resort to the essential facilities doctrines to make intellectual property available to other firms or players in the market. 413-453 . The essential facilities doctrine is famously disreputable. The essential facilities doctrine imposes on owners of essential facilities a duty to deal with competitors. ), Edward Elgar, 2017, 70 . What is the essential facilities doctrine? You will be redirected to the full text document in the repository in a few seconds, if not click here.click here. The essential facilities doctrine is a ‘mandatory access remedy’ that forms part of the European competition toolkit. In this thoughtful evaluation, Gustavo Ghidini offers up a reconstruction of the core features of each intellectual property paradigm, including patents, copyright, and trademarks, suggesting measures The Essential Facilities Doctrine in Information Economies: Illustrating Why the Antitrust Duty to Deal is Still Necessary in the New Economy . Under the essential facilities doctrine, intellectual property right holders are forced to license their exclusive right to competitors when certain conditions established by the European Court of Justice are met. Supreme Court and the European Court of Justice recently Rev. 443-462 (2002) (arguing that, as narrowly defined by various lower federal-court decisions, application of the doctrine is appropriate and may be needful when applied to “essential facilities” that consist of intellectual property). It is closely related to a claim for refusal to deal. Only dominant companies with a “genuinely tight grip” on the market can be forced to grant rivals access to their infrastructure. 2. Lamy conc. Intellectual Property and the Essential Facilities Doctrine. Refus de vendre un bien ou de fournir la prestation d’un service, oppose généralement à un détaillant ou à un grossiste. Intellectual Property, Standards, and Antitrust: A New Life for the Essential Facilities Doctrine? We identify aspects of intellectual property that warrants a different remedy from those using general definitions and remedies for essential facility. For example, it might specify when a railroad must be made available on reasonable terms to a rival rail company or an electricity transmission grid to a … It requires a delicate balance of, on the one hand, protecting the exclusivity of ownership and on the other hand encouraging other undertakings’ incentive to innovate. The area of IPR under competition law is premised on the assumption that the intellectual property is properly obtained. The author (2009) 39R.G.D. INTRODUCTION A recent case in the European Union, NDC v. IMS HEALTH,' has generated interest on both sides of the Atlantic regarding the relation- ship between intellectual property and antitrust principles. Intellectual property rights are the exclusive rights conferred upon the creator or the inventor of the property to use and enjoy his creation or invention exclusively. According to the CJEU, a facility is considered essential, and a dominant company owning it must grant access or license it, only when a narrow set of cumulative circumstances exist: 28 2. Abuse of a dominant position is the core ingredient to infringement of But after the Trinko case, there is no primary role of the doctrine under U.S. law and it has been accorded a subsidiary role to establish liability under the Sherman Act. As compared to the U.S., the essential facilities doctrine has found greater acceptance in E.U. Based European Intellectual Property Review, Vol. The possible rational for the differences between the two jurisdictions is the subject of the fifth part of the paper. Three conclusions follow: First, diversification restraints on the owners of essential facilities are inefficacious. However, courts have also declined to extend the doctrine to a wide variety of situations. essential facilities doctrine under U.S. antitrust law, followed by a discussion on the doctrine as applied and enforced in the EU. Verizon was providing access to its network on a discriminatory manner to the detriment of the competitors and was therefore acting contrary to the … JF - Antitrust Bulletin. 13 Pages Posted: 6 Apr 2016 Last revised: 12 Aug 2017. Fordham Intellectual Property, Media and Entertainment Law Journal Volume 11 Volume XI Number 2 Volume XI Book 2 Article 2 2001 The Application of the Essential Facilities Doctrine to Intellectual Property Licensing in the European Union and the United States: Are Intellectual Property Rights Still Sacrosanct? Under the ‘essential facilities’ doctrine, refusal of the sharing of a technology can be a ground for compulsory licensing to a third party, particularly if the facility is not available to the applicant at reasonable rates in order to compete with the others in the market. The Application of the essential facilities doctrine to intellectual property has been criticized in the European Union and the United States. The possible rational for the differences between the two jurisdictions is the subject of the fifth part of the paper. This provision prohibits abuses of dominant ‘’The essential facilities doctrine – what was wrong in Microsoft?’’. In this study, the origin and main parameters of the Essential Facilities Doctrine are analysed through the case-law that developed out of the application of the EC Competition Rules. We are not allowed to display external PDFs yet. 36(12), 2014. It is worthwhile to mention here that the doctrine was originally developed to establish liability under Section 2 of the Sherman Act which prohibits monopolization of Trade. But after the Trinko case, there is no primary role of the doctrine under U.S. law and it has been accorded a subsidiary role to establish liability under the Sherman Act. The essential facilities doctrine or the ‘bottleneck’ doctrine is part of an old, if controversial, theory of antitrust liability, whereby a monopolist leverages its monopoly power to obtain a competitive advantage by denying access to an essential facility. Though attendance The Essential Facilities Doctrine and Intellectual Property: Compulsory Licenses under EC Competition Law [English] Beschreibung: Essential facilities doctrine; compulsory licence – requirements: two markets, dominant position, prevention of the emergence of a new product, indispensable input, no objection justification: Kategorie: Competition law on the other hand preserves competition in the market. The second is the meaning of Aspen. The essential facilities doctrine on IP rights presents a wide and interdisciplinary interest. The Court, however, left some important questions open. While a thor- ough … In general, it refers to a type of anti-competitive behavior in which a firm with market power uses a "bottleneck" in a market to deny competitors entry into the market. It is high time to revive, renew, and expand the essential facilities doctrine in the digital economy. A facility is essential if no reasonable alternatives are available and duplication of the facility is not feasible due to legal, economic or technical obstacles. 211, 228 (1999). in part of intellectual property may be viewed as "essential" for ... modify intellectual property doctrine than to rely upon the hazy and uncertain contours of the essential facilities doctrine. The essential fac ilities doctrine is one expression of the venerable principle in Anglo-Saxon law that open access is re quired for certain facilities, assets, and property that are “affected with the public interest.”6 In more modern parlance, the kind of assets and facilities which normally are identified as Community within the context of essential facilities of intellectual property rights, where the arguments for strong intangible property rights clash with the efficiency arguments of competition law. Essential facilities, intellectual property, and the AML. The challenge was to the refusal to share network with competitors as mandated under the Telecommunications Act, 1996. 4 However, it is also possible to resort to the essential facilities doctrines to make intellectual property available to other firms or players in the market. What should be noted is that the application of the doctrine to compulsorily license IPRs has never been a subject for any case under US law practice (i.e. 01.04.2021 NL law. The question of interface between the Intellectual Property Rights (IPR) and competition laws is a debatable subject. The triggered problem was further explored in the IMS case , which constituted suitable opportunity for the Court of Justice to establish a clear principle on essential facilities in the context of intellectual property rights. ‘’The essential facilities doctrine – what was wrong in Microsoft?’’. ESSENTIAL FACILITIES DOCTRINE AND ITS APPLICATION IN INTELLECTUAL PROPERTY SPACE UNDER CHINA’S ANTI-MONOPOLY LAW Yong Huang, Elizabeth Xiao-Ru Wang, & Roger Xin Zhang ∗ INTRODUCTION Intellectual property rights (“IPRs”)1 are the cornerstone of the modern economy.2 Questions regarding the use of another’s IPRs have long been a the essential facilities doctrine and intellectual property rights: a response to pitofsky, patterson, and hooks @inproceedings{marquardt2016theef, title={the essential facilities doctrine and intellectual property rights: a response to pitofsky, patterson, and hooks}, … Essential Facility doctrine without prejudice to the guarantees conferred by the intellectual property right. Essential Facilities Doctrine on Intellectual ... von Martins Zwicky, Cibele - Jetzt online bestellen portofrei schnell zuverlässig kein Mindestbestellwert individuelle Rechnung 20 Millionen Titel which previously enjoyed the status of statutory monopolies. This Article explores the development of the essential facilities doctrine and its potential applicability to IPR matters. Hou (2012) Hou, Liyang, 2012. It is situated in the cornerstone of correlation between Competition and IP Law and emerged as an amalgam of these two sectors. The Supreme Court, at least most of the time, feels bound by the doctrine of stare decisis, and therefore takes great pains to leave narrow space for decisions that do not comport with modern thinking. U.S. law permits application of the essential facilities doctrine to intel-lectual property if the rightholder attempts to use the legitimate right to exclude inherent in an intellectual property right to restrict competi- There is a dearth of case law articulating the essential facilities doctrine (“the doctrine”); however, an assessment of the small amount of jurisprudence available indicates that the courts tend towards a narrow interpretation of the doctrine. Under EC law, the development of the essential facilities doctrine has been based on Article 82 of the EC Treaty. 413-453 inférieures américaines, les conditions de son application aux Etats-Unis, ainsi que la place importante occupée par les cas impliquant des droits de propriété intellectuelle. Its roots originate in the Terminal Railroad Combination case of 1912.2 Under EC law, the development of the essential facilities doctrine has been based on Article 82 of the EC Treaty. 70, p. 847 s. F MARTY et J. PILLOT, Pratiques de boycott ou refus d’accès à une facilité essentielle ? When obliged to grant access the dominant undertaking has in turn to be given adequate compensation. This study deals with the essential facilities doctrine in competition law. The Essential Facilities Doctrine and Intellectual Property: Compulsory Licenses under EC Competition Law [English] Beschreibung: Essential facilities doctrine; compulsory licence – requirements: two markets, dominant position, prevention of the emergence of a new product, indispensable input, no objection justification: Kategorie: See all articles by Giuseppe Colangelo Giuseppe Colangelo. Essential Facilities Doctrine and its application in Intellectual Property Space under China’s Anti-Monopoly Law. Y1 - 1999. Essential Facilities Doctrine and Intellectual Property Rights: How to Deal with IMS Cases? An essential facilities doctrine specifies when the owner(s) of an “essential” or “bottleneck” facility must provide access to that facility, at a reasonable price. Mere ownership of an intellectual property right does not confer a dominant position upon its owner. Essential Facilities Doctrine Reiko Aoki ∗ John Small † September 2002 Abstract We look at compulsory licensing of intellectual property as rem-edy for anti-competitive practice. AU - Cotter, Thomas F. PY - 1999. The author (2009) 39R.G.D. They opine that in absence of the essential facilities doctrine, it would not have been possible to duplicate facilities required in sectors like telecom etc. The essential facilities doctrine (EFD) holds that dominant firms may incur antitrust liability if they do not provide access to their facilities, even to competitors, on a non-discriminatory basis where sharing is feasible and the competitors cannot obtain or create the facility on their own. M3 - Article. Under the essential facilities doctrine, intellectual property right holders are forced to license their exclusive right to competitors when certain conditions established by the European Court of Justice are met. Kritika: Essays on Intellectual Property (Drahos, Ghidini, Ullrich eds. In this section, I provide some background ... patent, the inventor must show that her invention is novel,'! essential facilities doctrine under U.S. antitrust law, followed by a discussion on the doctrine as applied and enforced in the EU. involving intellectual property rights. The doctrine has its origins in United States … 9 See Thomas F. Cotter, Intellectual Property and the Essential Facilities Doctrine, 44 ANTITRUST BULL. Essential Facilities Doctrine on Intellectual Property Rights: A Comparison of the Approaches from the United States of America, the European Union and China Martins Zwicky, Cibele Editeur Northwestern Journal of Technology and Intellectual Property Volume 11|Issue 5 Article 2 2013 Search, Essential Facilities, and the Antitrust Duty to Deal Marina Lao Seton Hall University School of Law This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. The essential facility doctrine is applicable to intangible assets as well as physical assets. European Intellectual Property Review, Vol. Essential Facilities Abbott B. Lipsky, Jr.* and J. Gregory Sidak** Since United States v. Terminal Railroad Association, the essential facili-ties doctrine has been applied to a wide variety of business contexts—from football stadiums to the New York Stock Exchange. SP - 211. Mere ownership of an intellectual property right does not confer a dominant position upon its owner. Under the essential facilities doctrine, 27 the company controlling the essential facility has the duty to make that facility available to competitors under the grant of a compulsory licence. law and fundamental principles of intellectual property and antitrust law and policy. Role of IP law: Quite often, the essential facility doctrine is discussed with respect to the IP laws of a country. Ravichandran while commenting upon the Indian competition and IP law regime has opined that the relevant sections of the two laws confer broad powers on the CCI to deal with patent law cases. Conclusions follow. The essential facilities doctrine can be seen as an equivalent to the economic concept of a "natural monopoly, " implying that the wisdom ofjudicial regulation in this area requires an assessment of the admin-istrative complexity involved. P. MARQUARDT ET M. LEDDY, The essential Facilities Doctrine and Intellectual Property Rights : A response to Pitofsky, Patterson and Hooks : Antitrust L. J., 2003, vol. Slovak Telekom: ECJ on essentials of the ‘essential facilities’ doctrine. I would like to thank Professor Mark Patterson for his advice and guidance, Stephen Dixon and Kate Patton for their hard work, and my wife Katharine Deabler for her support. In International Review of Intellectual Property and Competition Law, Vol. The essential facilities doctrine is designed to oblige dominant undertakings to make available their important facilities, including intellectual property rights, for other undertakings. Les jugements rendus de part et d'autre de l'Atlantique dans le cadre de l'affaire Microsoft ont mis en lumière des politiques de concurrence dissonantes selon que l'on se trouve aux Etats-Unis ou en Europe. Dominant position is determined according to the conditions of the relevant market. 413-453 . “essential facilities doctrine,” which may impose a duty upon firms controlling an “essential facility” to make that facility available to their rivals.

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