DIFFERENT STRATEGIES FOR EXPLOITING THE PROTECTION OF INTELLECTUAL PROPERTY AND THE FUNDAMENTAL CHALLENGES OF THEIR EVALUATION IN EU COMPETITION LAW

Abstract

In 2009 research, the European Commission (EC) noted the growing threat to competition and innovation of using different strategies of intellectual property protection. In its 2016 research, the EC noted the growing trend of the strategic use of intellectual property protection in the technology industry (e.g., audiovisual, telecommunications, digital, computer, IT methods and in other technology markets). In 2021, the European Parliament adopted a resolution regarding an intellectual property action plan to support the EU’s recovery and resilience, on the basis of which it noted that the strategies identified in the 2016 research may, in some cases, be interpreted as abuse loopholes in the current legislation, and this is a problem that should be tackled. This article analyses what constitutes the strategic use of intellectual property protection, why and how it should be distinguished from usual use, and what are the fundamental challenges of assessing the strategic use of intellectual property protection from the perspective of EU competition law. The theses in this article are relevant to the assessment of the specific actions of holders of intellectual property rights in technological and digital markets in the context of competing through innovation.

Keywords

• competition
• incentives to innovate
• competition on the merits
• strategic use of intellectual property protection