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Tuesday, 5 July 2011

IP and competition: some recent publications

Intellectual Property and Competition is the title of a collection of contributions edited by the affable Michael Carrier (Rutgers School of Law-Camden, US).  This volume belongs to the Critical Concepts in Intellectual Property Law series, which rolls out under the watchful eye of Berkeley's formidable Robert Merges.

According to the publishers,
"The intersection of the intellectual property and competition laws presents uniquely complicated legal issues. In this essential volume Professor Carrier brings together 14 of the most important works written about the intersection. The entries, from leading judges, government officials, academics, and economists, explore history, the ‘new economy’, and frameworks to resolve the tension between the laws. They also address refusals to license, patent pools, innovation markets, standard setting organizations, and pharmaceutical patent settlements. Alongside an original introduction, this book is an authoritative reference tool for attorneys, academics, and others interested in intellectual property and competition issues.".
This is all very well and true.  The IP/competition interface is confoundedly complex and is a great deal more frustrating for lawyers than it is for economists.  The economist 'only' has to explain, prescribe and analyse within the parameters of his discipline.  The lawyer, faced with the same intersection, must tell his client which path he must take when he reaches it, what risks he will avoid if he does and what consequences he will incur if he doesn't.  The lawyer gets it in the neck when his caution results in loss or diminution of market control; he also gets it if he steers his client into the one-way alley of anticompetitive practice from which there is no easy, dignified and discreet means of backing out.  This book tackles some of the most awkward issues full-on -- patent thickets and patent pools are two of the most intractable -- as well as the more malleable issue of standard-setting. The editor has chosen his contributors, and the contributions, with the skilled eye of the connoisseur, to the benefit of the serious student of this tricky topic.

Can this be a European economist
with an interest in the IP/competition
interface -- or is it just another Yeti?
What this book does not do is to warn the casual reader that it is confined to the experience, the history and the analysis of the United States.  Anyone reading it might be forgiven at times for thinking that Europe, whether as a continent or as an economic and increasingly political union which is twice the size of that of the US, simply does not exist.  What the publisher might wish to consider is the possibility of bringing out a companion volume, along similar lines to this one (which should not be difficult since the major problems faced in the US are faced in Europe too) but which focuses on the history and evolution of the European competition regime and its curious, ambivalent relationship with IP law and practice.  Unlike the Yeti and Father Christmas, European economists who write on IP do exist, and the primary sources generated by the European Commission and Court of Justice in their investigations under Articles 81/82, 85/86 and 101/102 of the relevant version of the Treaty make fascinating reading.

Bibliographical data. Hardback. xx + 753 pages. ISBN 978 1 84844 218 4. Price £220 (online from the publisher's website £198).  Rupture factor: severe. Book's web page here.


Oliver on Free Movement of Goods in the European Union (Fifth Edition), is still happily edited by Peter J Oliver, but with the support of a small army of contributors: Stefan Enchelmaier, Malcolm Jarvis, Angus Johnston, Sven Norberg, Christopher Stothers and Stephen Weatherill. The title has undergone a subtle change, 'Community' being changed to 'Union', and the book feels a little heavier, though that might be something to do with all those long, ponderous sentences in which the Court of Justice so enjoys couching its thoughts.  Writes the publisher:
"... whether advising clients or preparing for teaching there is no European lawyer who can afford not to have a copy of this book close to hand [Publishers always think academics can afford books.  Academics know they can't, which is why they review them and get to keep the review copy]. Concise, precise, and lucid, the book has become the first port of call [indeed, an 'essential facility' as we competition lawyers like to say] for anyone seeking answers to questions about the foundations of free movement of goods in the EU. With specialist chapters written by leading academic and practising lawyers, including Peter Oliver himself, this edition has been extensively rewritten to take into account recent judgments from the ECJ, including important cases such as C-110/05 Commission v Italy ("trailers") and C- 142/05 Mickelsson ("jet skis") [oh dear, the Kat didn't spot this one when it was decided, but it does mention the free movement of goods ... just], both of which relate to restrictions on the use of goods. It also takes account of all the recent European legislation and the impact of the Lisbon Treaty".
The Kat has taken a tour round this book and has to confess that it lives up to all the nice things the publisher's blurb says about it.  Books don't usually get to a fifth edition unless (i) they're pretty useful or (ii) the author pays to have them published.  This book is definitely in the first of those categories.

Bilbiographical data. Hardback. xciii + 534 pages. 9781841138107 Price £95. Rupture factor: medium. Web page here.

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