Antitrust Rules and IP Rights in the European Union and the United States—Towards Convergence

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Mario Todino, Aug 22, 2014

Over the last years a significant number of high profile antitrust cases raising the issue of how to reconcile competition rules and International Property rights have been investigated in parallel by the U.S. and the EU competition agencies. Most of these cases show an ever-increasing level of convergence, although conventional wisdom still suggests that the approach in accommodating antitrust rules and IP rights is fundamentally different on the two sides of the Atlantic.

The tough stance taken by the U.S. agencies towards judicial injunctions sought by FRAND-pledged SEPs holders in the smartphone war, and the Supreme Court’s ruling in Actavis, also show that the United States—like the European Union—is progressively departing from a traditional “symmetry” principle which entails that, when applying antitrust rules to IP rights, the latter rights have to be treated and given the same deference as other property rights. The intensity in the application of competition rules increasingly depends on the strength of the IP rights at stake, as well as on the sector involved. And while the EU Commission still shows more boldness in its enforcement actions; at a closer look, differences with the United State tend to be modest and mainly to do with different enforcement models.

A significant source of inconsistency, though, may come from the enforcement actions of National Competition Agencies across the European Union, for some of them—in an attempt to emulate the Commission’s bold stance—sometimes take a very intrusive attitude towards International Property Rights, putting convergence at risk.

The purpose of this article is to concisely compare theories of harms and outcomes of some of the most important antitrust investigations of the last years run in parallel by the United States and the European Union where an intersection between antitrust and IP rules has occurred. It will show that, after all, there is much more convergence between the U.S. and the EU systems than what has been conventionally thought.