Hi Zeev Hed; Re Rambus' threat to not license lawsuit losers, an interesting article on IP rights in Europe:
Limits on Enforcement of Intellectual Property Rights
Introduction
The problem of over-wide intellectual property rights is serious. In effect, such rights exercise a blocking function, preventing downstream or subsequent exploitation of other rights that may be generated and whose exploitation may be prevented by the existence of superior master rights. The problem is especially acute where there are broad patents in new and rapidly developing technologies and where standards are being instituted which depend upon existing patented technology.
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Precursor to Getting into the Realms of Abuse
Despite what many people would like to believe, there is no general obligation to license an intellectual property right.3 In order for the conditions to be set up where it is even possible to run an anti-trust argument that there must be some limit upon the right to exploit such rights, there must first be the conditions of abuse of a dominant position under Article 86 (or if it arises out of agreements or the pooling of rights, Article 85). That abuse must arise out of more than the mere exercise of intellectual property rights, but must also lead to one of the effects which renders such conduct unacceptable under either or both of those Articles. It is that boundary that will be explored.
Types of Abuse
There are many types of abuse, which can be based upon the existence of a master patent or blocking copyright covering a very wide field, so that all subsequent entrants have to use it. The types of potential abuse to look for include those set out below. However, it is only where, upon the facts as a whole, one can say that there is a breach of Article 85 or 86 that it is possible to say that the right to exploit intellectual property rights can be limited by anti-trust law. Sample abuses include:
* Absolute refusal to license, where technology leading to secondary, new or unexploited markets is being blocked, and there is no way around the obstacle;
* Ability to enter into de facto price fixing agreements, for example, by having a high price per unit royalty;
* Licensing only a particular platform for use on the device or with the patent, thereby getting the benefit of non-patented technology — this may be illegal, for example, under domestic patent law;
* Limiting the number of licensees;
* Limiting, preventing or delaying the introduction of research and development or new technology;
* Cross-licensing to exclude competitors;
* Cross-subsidization; and
* Building patent and copyright minefields.
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Essential Facility Doctrine: Duty to License
The combination of the extremely wide patent or blocking copyright together with the obligation to use it as an actual or de facto standard imposed by many or all Member States puts a patentee or copyright holder in an absolute legal monopoly situation.8 The same situation occurs where such rights absolutely block a secondary or derivative area of technology. Such a master patent or copyright is de facto the European standard and, therefore, an essential facility. ... the patentee would infringe Article 86 of the EC Treaty if it was not prepared to grant a license to use it on a non-discriminatory basis to any party asking for it and prepared to pay a reasonable royalty.
An argument that a patentee has already granted one license and, therefore, that there is enough competition in the marketplace may not be valid.
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"A dominant company is normally free to acquire and retain for its own exclusive use intellectual property rights which give it advantages. However, if the rights in question give control of something without which competitors are not able to compete at all, there can be a duty to license; the right is an essential facility. But this is true only if the license is essential to produce any goods to compete in a whole market. An intellectual property right does not normally or necessarily create a monopoly in a whole product market. Licenses in general need not be given merely to produce specific designs of goods such as components which would otherwise infringe the dominant company’s designs, copyright or trademark rights: if licenses are needed only for such purposes, there is a duty to license only if there is some related exploitative or exclusionary behavior in addition to the refusal to license, and for which the granting of a license is an appropriate competition law remedy".
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themis.wustl.edu
-- Carl |
