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. The possible rational for the differences between the two jurisdictions is the subject of the fifth part of the paper. 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. 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 In the intellectual property context, an obligation to make property available is equivalent to a requirement 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. The author (2009) 39R.G.D. Intellectual property rights and competition law are two separate legal regimes having distinct objectives and purposes. 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 doctrine has its origins in United States … What is the essential facilities doctrine? 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. 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. Though attendance 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 As with railroads, the doctrine can once again open markets while preserving network-based efficiencies. 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. 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.) 413-453 . In International Review of Intellectual Property and Competition Law, Vol. 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. The essential facilities doctrine is a legal doctrine which describes a particular type of claim of monopolization made under competition laws. 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. Specifically, this paper challenges this conventional wisdom 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: Compulsory licensing is the remedy most often used when the intellectual property owner is abusing market power. 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. Dominant position is determined according to the conditions of the relevant market. 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. The essential facilities doctrine remedy for this anticompetitive practice is the imposition of an obligation … Second, the doctrine should not be applied to intellectual property. Cover Page Footnote . involving intellectual property rights. essential facilities doctrine under U.S. antitrust law, followed by a discussion on the doctrine as applied and enforced in the EU. 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 Application of the essential facilities doctrine to intellectual property has been criticized in the European Union and the United States. Essential Facility doctrine without prejudice to the guarantees conferred by the intellectual property right. The essential facilities doctrine is designed to oblige dominant undertakings to make available their important facilities, including intellectual property rights, for other undertakings. This is just a quick, general and preliminary comment on the development of the doctrine of essential facilities. Slovak Telekom: ECJ on essentials of the ‘essential facilities’ doctrine. involving intellectual property rights. European Intellectual Property Review, Vol. 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. JO - Antitrust Bulletin. Cotter, Thomas F. / Intellectual Property and the Essential Facilities Doctrine. editor / Ruth Towse IV ; Rudi W. Holzhauer. This study deals with the essential facilities doctrine in competition law. ‘’The essential facilities doctrine – what was wrong in Microsoft?’’. The doctrine was first developed in the United States. Hou (2012) Hou, Liyang, 2012. Under EC law, the development of the essential facilities doctrine has been based on Article 82 of the EC Treaty. We are not allowed to display external PDFs yet. 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. We identify aspects of intellectual property that could warrant a different remedy from those developed for access to physical essential facilities. 13 Pages Posted: 6 Apr 2016 Last revised: 12 Aug 2017. essential facilities doctrine under U.S. antitrust law, followed by a discussion on the doctrine as applied and enforced in the EU. EP - 250. 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 facility doctrine is applicable to intangible assets as well as physical assets. 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. It is closely related to a claim for refusal to deal. The area of IPR under competition law is premised on the assumption that the intellectual property is properly obtained. Supreme Court and the European Court of Justice recently One is the essential facilities doctrine, discussed below. We first examine the South African position and identify shortfalls in the analysis that has so far been provided by the courts. approach. 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. 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. It is high time to revive, renew, and expand the essential facilities doctrine in the digital economy. 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. Verizon was providing access to its network on a discriminatory manner to the detriment of the competitors and was therefore acting contrary to the … 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. Abuse of a dominant position is the core ingredient to infringement of What is the essential facilities doctrine? T1 - Intellectual Property and the Essential Facilities Doctrine. 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 Conclusions follow. The Essential Facilities Doctrine in Information Economies: Illustrating Why the Antitrust Duty to Deal is Still Necessary in the New Economy . Compulsory licencing gives rise to a conflict between IP law and competition law. THE ESSENTIAL FACILITIES DOCTRINE AND INTELLECTUAL PROPERTY RIGHTS: A RESPONSE TO PITOFSKY, PATTERSON, AND HOOKS PAUL D. MARQUARDT MARK LEDDY* I. Based 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. M3 - Article. 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. 70, p. 847 s. F MARTY et J. PILLOT, Pratiques de boycott ou refus d’accès à une facilité essentielle ? While a thor- ough … VL - 44. Essential Facilities Doctrine and Intellectual Property Rights: Approaches under the Competition Law 413-453 . 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. 5 In more recent cases, however, the European courts have also held a dominant firm's refusal to license intellectual property 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. The challenge was to the refusal to share network with competitors as mandated under the Telecommunications Act, 1996. Some Insights from the Chinese Regulation. The possible rational for the differences between the two jurisdictions is the subject of the fifth part of the paper. 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. 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 You will be redirected to the full text document in the repository in a few seconds, if not click here.click here. ‘Patent thickets’ 4 are also pointed out 3Article 31(b) of the TRIPs Agreement. The essential facilities doctrine on IP rights presents a wide and interdisciplinary interest. Competition Law and Intellectual Property Max-Planck Conference des Max-Planck-Instituts für Geistiges Eigentum, Wettbewerbs- und Steuerrecht Location: Kloster Seeon Foreign jurisdicti 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. 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. 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. 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. 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. 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. ER - Essential facilities, intellectual property, and the AML. This Article explores the development of the essential facilities doctrine and its potential applicability to IPR matters. Law Offices of Curtis v Trinko LLP held that the Supreme Court has never recognised the essential facilities doctrine. Three conclusions follow: First, diversification restraints on the owners of essential facilities are inefficacious. Lamy conc. 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. 36(12), 2014. ), Edward Elgar, 2017, 70 . 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. 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 … The question of interface between the Intellectual Property Rights (IPR) and competition laws is a debatable subject. See all articles by Giuseppe Colangelo Giuseppe Colangelo. 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. We identify aspects of intellectual property that warrants a different remedy from those using general definitions and remedies for essential facility. ‘’The essential facilities doctrine – what was wrong in Microsoft?’’. “essential facilities doctrine,” which may impose a duty upon firms controlling an “essential facility” to make that facility available to their rivals. Conclusions follow. Supreme Court and the European Court of Justice recently II. Different assets have been qualified as essential facilities: physical infrastructures like bridges or ports, intellectual property rights and sets of information. European Intellectual Property Review, Vol. Essential Facilities Doctrine and Intellectual Property Rights: How to Deal with IMS Cases? The essential facilities doctrine imposes on owners of essential facilities a duty to deal with competitors. 2011, n° 1724 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 This provision prohibits abuses of dominant right course is to abandon the doctrine altogether. 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. The scientific interest of the 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. Mere ownership of an intellectual property right does not confer a dominant position upon its owner. The Doctrine is applicable to both private and state-owned companies. In this section, I provide some background ... patent, the inventor must show that her invention is novel,'! Mere ownership of an intellectual property right does not confer a dominant position upon its owner. 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. Denying access to an essential facility may amount to illegal monopolization (Section 2 of the … The Application of the essential facilities doctrine to intellectual property has been criticized in the European Union and the United States. Only dominant companies with a “genuinely tight grip” on the market can be forced to grant rivals access to their infrastructure. 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}, … Intellectual property. In International Review of Intellectual Property and Competition Law, Vol. JF - Antitrust Bulletin. Competition law on the other hand preserves competition in the market. 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. Yong Huang, Elizabeth Xiao-Ru Wang, and Roger Xin Zhang, 22 George Mason Law Review 1103-1126, 2015 . 414 Revue générale de droit (2009) 39 R.G.D. Hou (2012) Hou, Liyang, 2012. 36(12), 2014. 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? Intellectual Property and the Essential Facilities Doctrine. over open access in other fields. 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. 414 Revue générale de droit (2009) 39 R.G.D. Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. When obliged to grant access the dominant undertaking has in turn to be given adequate compensation. 9 See Thomas F. Cotter, Intellectual Property and the Essential Facilities Doctrine, 44 ANTITRUST BULL. 2. 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 We identify aspects of intellectual property that warrants a different remedy from those using general definitions and remedies for essential facility.
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