scholarly journals Applying the rule of per se and rule of reason to assess the violation of the Competition Law by the IPRs owners

2020 ◽  
Vol 4 (2) ◽  
pp. First
Author(s):  
Bui Thi-Hang Nga
Keyword(s):  
Intellectual Property ◽  
Competitive Advantage ◽  
Market Power ◽  
Intellectual Property Rights ◽  
Competition Law ◽  
Rule Of Reason ◽  
Per Se ◽  
The Right ◽  
Exclusive Right ◽  
Monopoly Position

With the nature of practically irreplaceable and the monopoly of the protection documents, the law has given the intellectual property rights (IPRs) owner a competitive advantage, as well as a market power. As a result, to extent the market power and create a monopoly position to maximize profitability, IPRs owners tend to abuse IPRs to limit competition. Although the exclusive right to IPRs is a legal monopoly comes from protection documents, it does not mean that the owner has the right to abuse this monopoly to limit competition. This is because such behavior is not considered an exception under the Competition Law and shall be prohibited in case the satisfaction of provision violating conditions of the Competition Law. However, in order to balance the interests of related subjects, in assessment of the Competition Law violations of IPRs abuses, the laws of countries fully recognized and applied the rule of reason instead of per ser as Competition Law violations in general. The article aims to analyze and explain the purpose of the application of the rule of reason when assessing the violation of the Competition Law of IPRs owner and when using the per se, in respect of the legal monopoly of the IPRs subjects. The paper then provides proposals to complete the Vietnamese Competition Law which governs the abuse of IPRs owners.

scholarly journals The monopoly leverage theory and tying/ bundling arrangement in intellectual property rights transfer contracts

2019 ◽  
Vol 3 (3) ◽  
Author(s):  
Bui Thi Hang Nga
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Competitive Advantage ◽  
Market Power ◽  
Intellectual Property Rights ◽  
Competition Law ◽  
Monopoly Power ◽  
Competition Advantage ◽  
Monopoly Position ◽  
Rights Transfer

The exclusive essence and importance of intellectual property rights in production and business provide the owners with a competition advantage, even monopoly power, in the related market. To maximize profit and retain the monopoly position, owners tend to use intellectual property rights as a monopoly leverage to require the transferee to accept the tying arrangement as a condition for the transfer. Monopoly leveraging is defined as the use of monopoly power in one market as leverage to obtain a competitive advantage in a second market. From the perspective of competition law, the theory of leverage is used to explain the cases of businesses abusing market power (monopoly) obtained from intellectual property rights to limit competition. This paper addresses the utilization of monopoly leverage theory to explain the owepractices of tying arrangement in intellectual property rights transfer contracts.

While the Treaty does not affect the existence of intellectual property rights, there are nonetheless circumstances in which the exercise of such rights may be restricted by the prohibitions laid down in the treaty. 2. Article 36 permits exceptions to the free movement of goods only to the extent to which such exceptions are necessary for the purpose of safeguarding the rights that constitute the specific subject-matter of the type of intellectual property in question. Perhaps the main advantage of this formula, apart from the fact that it narrows the scope of the exceptions permitted by Article 36, is that it allows subtle distinctions to be made depending on the type of intellectual property in issue. 3. The exclusive right conferred on the owner of intellectual property is exhausted in relation to the products in question when he puts them into circulation anywhere within the Common Market. Spelt out more fully, ‘the proprietor of an industrial or commercial property right protected by the legislation of a Member State may not rely on that legislation in order to oppose the importation of a product which has lawfully been marketed in another Member State by, or with the consent of, the proprietor of the right himself or person legally or economically dependent on him’. The expression ‘industrial and commercial property’ clearly embraces patents and trademarks. It also extends to such specialised areas as plant breeders’ rights. The court has held that copyright can also be a form of industrial or commercial property because it ‘includes the protection conferred by copyright, especially when exploited commercially in the form of licences capable of affecting distribution in the various Member States of goods incorporating the protected literary or artistic work’. The principle that the Treaty does not affect the existence of industrial and commercial property rights is derived from Article 222 of the treaty. This provides that ‘the treaty shall in no way prejudice the rules in Member States governing the system of property ownership’. Consequently intellectual property rights are unaffected by the provisions of the treaty unless they hinder free movement or offend the rules of competition. In Keurkoop v Nancy Kean (see below) the design of a handbag which was manufactured in Taiwan was registered in the Benelux countries but without the authority of the actual author. In Case 78/70, Deutsche Grammophon v Metro-SB Grossmärkte [1971] ECR 487, [1971] CMLR 631, the European Court stated:

1997 ◽  
pp. 110-114
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Member State ◽  
Intellectual Property Rights ◽  
Free Movement ◽  
Member States ◽  
Commercial Property ◽  
European Court ◽  
The Right ◽  
Exclusive Right

scholarly journals Activating Actavis in Europe – the proposal of a ‘structured effects-based’ analysis for pay-for-delay settlements

Legal Studies ◽  
2016 ◽  
Vol 36 (4) ◽  
pp. 683-705 ◽  
Author(s):  
Sven Gallasch
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Generic Drugs ◽  
Rule Of Reason ◽  
Innovative Process ◽  
The Us ◽  
Us Supreme Court ◽  
The Right ◽  
Innovative Drugs

Striking the right balance between the protection of competition law and intellectual property rights is of utmost importance, especially in the pharmaceutical sector; affordable generic drugs are as important as new innovative drugs. Pay-for-delay settlements take place at exactly this intersection. They end patent infringement litigation but, at the same time, delay entry of generic drugs by means of a substantial payment from the brand company to the generic. Whereas the US Supreme Court opted for a rule of reason approach that requires an analysis of the potential anticompetitive effects, the European Commission regarded such settlements as restriction by object, finding an infringement without the need for an effects-based analysis. This approach is criticised and a novel ‘structured effects-based’ approach is proposed allowing the authority to effectively scrutinise such settlements while striking the right balance in order to protect the innovative process and the exercise of intellectual property rights.

Competition Law and Intellectual Property Rights: Is the Property Rights’ Approach Right?

2006 ◽  
Vol 8 ◽  
pp. 153-186 ◽  
Author(s):  
Ioannis Lianos
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Competition Law ◽  
Economic Welfare ◽  
Contentious Issue ◽  
Ec Competition Law ◽  
Exclusive Right

The intersection between competition law and intellectual property has been a contentious issue since the very beginnings of European Communities (EC) competition law. Both intellectual property and competition law pursue the aim of enhancing economic welfare and innovation, but their direct objectives seem to be in conflict. Whereas intellectual property focuses on the reward of inventive effort and the inventor’s incentives to innovate by conferring an exclusive right on the use of the invention, competition law emphasises the dissemination of innovation by ensuring diffusion and access.

scholarly journals THE USE OF A PATENT BY CO-AUTH ORS AND HEIRS FOR COMMERCIAL PURPOSES AND SOME ISSUES OF PUBLICITY IN PROCEEDINGS RELATED TO DISPUTES OVER INTELLECTUAL RIGHT PROTECTION

2020 ◽  
Vol 3 ◽  
pp. 24-27
Author(s):  
Tatyana V. Ivanova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Property Right ◽  
Intellectual Property Right ◽  
Special Method ◽  
Procedural Information ◽  
Protecting Intellectual Property ◽  
The Right ◽  
Exclusive Right

The article considers certain situations that arise while using a patent for an invention by co-authors and successors and some issues of publicity in legal disputes over the protection of intellectual property rights. The invention created by a team of authors serves as the basis for the association of co-authors in an organization aimed at the commercial use of a patent. The exclusive right to a patent shall transfer to the successors, but the right to membership in the organization where the patent was supposed to be used may not be transferred, in which case the successors shall have limited access to information on the use of the patent. Various secrets, confidentiality of information, unavailability of information, complexity of protecting intellectual property rights, complex relationship between members of the organization and successors represent only some of the problems that create obstacles to the normal exercise of the right to use a patent for an invention and to get profit from its use. There is no special method to protect intellectual property right, such as the request to provide access to the information on shared use of a patent. The publicity principle, being one of the principles of legal proceedings, provides the condition for defining the truth in the process of proving, the court provides the conditions for the timely receipt by the participants of the required and sufficient procedural information on a particular case. The publicity of information in a legal case is most likely to provide the opportunity to satisfy a claim for the protection of intellectual property right. The right to membership in the organization, in which the patent was supposed to be used when it had been developed by the co-authors of the organization, can be considered as a guarantee for the right to use the patent. The exclusion of at least one element from this system shall create unequal rights and shall make it impossible to achieve a result — receive profit from the use of a patent.

scholarly journals PERLINDUNGAN HUKUM TERHADAP HAK PENCIPTA SOFTWARE YANG NOMOR SERIALNYA DIKOMERSIALKAN TANPA HAK DI CYBER SPACE BERDASARKAN UNDANG-UNDANG NOMOR 28 TAHUN 2014 TENTANG HAK CIPTA

2020 ◽  
Vol 16 (1) ◽  
pp. 77-87
Author(s):  
Billy Handiwiyanto ◽  
Wisnu Aryo Dewanto
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Research Method ◽  
Economic Benefits ◽  
Copyright Holder ◽  
Economic Rights ◽  
Cyber Space ◽  
The Right ◽  
Exclusive Right

Intellectual Property Rights consist of various types, one of which is Copyright, Copyright is one of the Intellectual Property Rights that has a broad scope of scope of objects, to the Copyright that is owned, the Author and / or the Copyright Holder get an Exclusive Right on the Work , in which this Exclusive Right consists of 2 (two) types, namely the Moral Right to the Work, and also the Economic Right to the Work. The right to exploit the Work rests with the Author and/or the Copyright Holder of the Work, but there are often violations of the Exclusive Rights in this case the Economic Right which is the Right of the Author and/or the Copyright Holder to obtain economic benefits from the utilization of the Copyright, in which a Work is commercialized without Rights by other Parties who do not have the Right to Commercialize the Work. This study aims to determine the basis of the Liability of those commercializing a Work without Rights, which violates the Exclusive Rights of the Author and/or the Copyright Holder to utilize the Work in order to obtain economic benefits from the Work. This research was conducted using the Normative Jurisdiction research method which examines a problem on the basis of applicable laws and regulations, as well as from views and doctrines in the science of law. The results of this study state that other parties who without the right to commercialize a Work must be held accountable for violating the Exclusive Rights in this case the Exclusive Rights to the Economic Rights of the Author and/or the Copyright Holder.Hak Kekayaan Intelektual terdiri dari berbagai macam jenis, salah satunya Hak Cipta, Hak Cipta merupakan salah satu Hak Kekayaan Intelektual yang memiliki ruang lingkup cakupan obyek yang luas, terhadap Hak Cipta yang dimiliki, Pencipta dan/atau Pemegang Hak Cipta mendapatkan Hak Eksklusif atas Ciptaan tersebut, yang mana Hak Eksklusif ini terdiri dari 2 (dua) macam, yaitu Hak Moral atas Ciptaannya, dan juga Hak Ekonomi atas Ciptaan. Hak untuk mengeksploitasi Ciptaan tersebut terletak pada Pencipta dan/atau Pemegang Hak Cipta dari Ciptaan tersebut, namun seringkali terjadi pelanggaran terhadap Hak Eksklusif yang dalam hal ini ialah Hak Ekonomi yang merupaan Hak dari si Pencipta dan/atau Pemegang Hak Cipta untuk mendapatkan manfaat ekonomi dari pemanfaatan terhadap Hak Cipta tersebut, yang mana suatu Ciptaan dikomersialkan tanpa Hak oleh Pihak lain yang tidak punya Hak untuk Mengkomersialkan Ciptaan tersebut. Penelitian ini bertujuan untuk mengetahui dasar Tanggung Gugat dari pihak yang mengkomersialkan suatu Ciptaan tanpa Hak, yang melanggar Hak Eksklusif Pencipta dan/atau Pemegang Hak Cipta untuk memanfaatkan Ciptaan tersebut guna mendapatkan manfaat ekonomi dari Ciptaan tersebut. Penelitian ini dilaksanakan dengan metode penelitian Yuridis Normatif yang mana meneliti suatu masalah dengan dasar peraturan perundang-undangan yang berlaku, juga dari pandangan-pandangan dan doktrin-doktrin dalam ilmu hukum. Hasil penelitian ini menyatakan bahwa pihak lain yang dengan tanpa hak mengkomersialkan suatu Ciptaan harus bertanggung gugat karena melanggar Hak Eksklusif dalam hal ini Hak Eksklusif terhadap Hak Ekonomi dari Pencipta dan/atau Pemegang Hak Cipta.

scholarly journals Desain Indutri Sebagai Karya Yang Dilindungi (HAKI)

2019 ◽  
Vol 19 (1) ◽  
pp. 23-33
Author(s):  
Azhari AR Azhari AR
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
General Public ◽  
Industrial Design ◽  
Two Dimensions ◽  
Design Law ◽  
The Right ◽  
Exclusive Right

A designer has a copyright on the results of his creativity in the form of a blueprint and has the exclusive right to make the artwork into three or two dimensions. The industrial design law is directed at protecting mass-produced goods. People prefer protection with the right to industrial design, which is only protected for 10 years. This is because a design is very easy and can be imitated quickly by the general public. When it is protected by copyright, it becomes ineffective and wasteful. Copyright does not protect mass products.Keywords: Design, Industry, Work, Intellectual Property Rights

PROBLEMS OF EXHAUSTION OF THE EXCLUSIVE RIGHT TO EXPORT UNDER THE LEGISLATION OF UKRAINE

2017 ◽  
Author(s):  
Andriy Yevkov ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Point Of View ◽  
Individual State ◽  
License Agreement ◽  
Legal Norms ◽  
Domestic Legislation ◽  
The Right ◽  
Exclusive Right

The article examines the problems of normative establishment in the legislation of Ukraine of the exclusive right to export goods containing protected intellectual property objects, as well as the conditions and grounds for applying of legal norms enshrining the principle of exclusive intellectual property rights exhaustion to the exclusive right to export. Considering the limitation of the protection of exclusive rights to the territory of each individual state, the paper examines the problems of the territorial aspect (territorial models) of the exhaustion of rights, as well as the influence of exclusive rights to import, distribution and export on the implementation of international trade. The article notes that the right to export is directly established in the current domestic legislation of Ukraine only in respect of certain protected intellectual property objects, and substantiates the view that, given the inexhaustible list of property rights (ways of usage) for many other protected objects, the exclusive right of rightholders to export must also be recognized in respect of such objects. Concerning the implementation of export operations by the licensee the paper substantiates the point of view according to which, if in the license agreement the territory of validity of licensing rights is limited to the territory of Ukraine, then the licensee receives permission for distribution within the scope of this subjective right (i.e. within Ukraine) and, accordingly, is not entitled to export if there are no compelling reasons to consider such a prohibition as a way of restricting competition, abuse of right, etc. Regarding the export of goods by their purchasers after the first legal sale of such goods in a particular country, the paper notes that, despite the lack of direct instructions in the legislation, it can be assumed that the exclusive right to export should be exhausted after the first legal sale of goods containing protected objects, unless there are other grounds to believe that the export of such goods may further harm the rights and essential interests of the rightholder in the country where such initial introduction of goods into circulation took place (in the country of origin of the goods).

The Repeal of Section 51(3) of the Competition and Consumer Act: A Mistake in Need of Correction

2020 ◽  
Vol 43 (1) ◽  
Author(s):  
Arlen Duke
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Competition Law ◽  
Competitive Effects ◽  
Productivity Commission ◽  
Per Se

Section 51(3) of the Competition and Consumer Act 2010 (Cth), which exempted certain conditions in intellectual property licences from some competition law prohibitions, was repealed on 13 September 2019. The repeal goes against recommendations of numerous reform bodies and will expose conditions which are benign or indeed pro-competitive to per se prohibitions (which capture certain forms of conduct whether or not that conduct is likely to have anti-competitive effects). The repeal of section 51(3) is a mistake and is based on a faulty understanding of the recommendations made by the Harper Committee and the Productivity Commission. A new intellectual property exemption should be introduced into the Competition and Consumer Act 2010 (Cth) as a matter of urgency to ensure that competitively benign or pro-competitive conditions in intellectual property rights licences are not exposed to per se competition law liability.

Competition Law and Intellectual Property Rights: Is the Property Rights’ Approach Right?

2006 ◽  
Vol 8 ◽  
pp. 153-186
Author(s):  
Ioannis Lianos
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Competition Law ◽  
Economic Welfare ◽  
Contentious Issue ◽  
Ec Competition Law ◽  
Exclusive Right

The intersection between competition law and intellectual property has been a contentious issue since the very beginnings of European Communities (EC) competition law. Both intellectual property and competition law pursue the aim of enhancing economic welfare and innovation, but their direct objectives seem to be in conflict. Whereas intellectual property focuses on the reward of inventive effort and the inventor’s incentives to innovate by conferring an exclusive right on the use of the invention, competition law emphasises the dissemination of innovation by ensuring diffusion and access.

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