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Competition Law In Intellectual Property Litigation

August 2011

European Competition Journal (ECJ)

Competition Law In Intellectual Property Litigation: The Case For A Compulsory Licence Defence Under Article 102 TFEU, 7 European Competition Journal (2011), p. 297-322
Defendants against whom an action has been filed for infringement of an intellectual property right (IPR) are increasingly raising the defence that they are entitled to a licence under competition law. This article examines the admissibility of such a competition law defence and the circumstances under which it may be invoked. In the author's view the fact that an IPR holder has abusively refused to grant a licence does not suffice to dismiss an IPR action. Such action only constitutes an abuse of rights and is therefore to be dismissed if the defendant has made an unconditional, reasonable and readily acceptable licence offer. The author does not, however, consider it necessary that the defendant has also anticipated the obligations stipulated in the intended contract by paying licence fees in advance. Finally, the article examines the consequences of a legitimate competition defence for the various liabilities for IP infringement.

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