IPKAT AT IP/COMPETITION FORUM

On Friday one half of the IPKat spent a pleasant day in Oxford at the IPI/Oxford Intellectual Property Research Centre/University of Oxford Centre for Competition Law and Policy IP Forum. The subject was Intellectual Property and Competition Law: Contemporary Issues.

Highlights included:

* Professor Steve Anderman (Essex) on the IP/competition law interface and how the two areas of law deal with the interface
* Professor Stefan Szymanski (Imperial) giving the economist’s view of IP and competition alw, and concluding that the public have a pretty bleak view of IP and so more erosion of IP law by competition law is likely.
* Christine Greenhalgh (Oxford) on her and Mark Rogers’ (also Oxford) empirical research on the interaction of competition, R & D and IP
* Dr John Temple Lang (Cleary Gottlieb Steen and Hamilton LLP, Trinity College Dublin and Oxford) on whether pre-standard royalty talks and royalty obligations breach Art.82 EC
* Alden F Abbott (FTC) on the US and particularly the FTC’s attitude to various arguably uncompetitive IP-related hot potatoes
* Josef Drexl (Max Planck) on the desirability of international competition law rules to match the international IP norms.
* Allen N Dixon on the competition law problems that practitioners are likely to face

While the IPKat found the day illuminating, he got a bit dispirited by the pathological approach of essentially all the speakers. The focus was squarely on how competition law can step in when IP rights are being misused. The IPKat would have liked to have seen more emphasis on the way in which IP law already tried to take the interests of competitors into account, and whether competition lawyers think that IP law is doing a good job of this. In particular, the IPKat would have been interested to know what a competition lawyer would have made of the trade mark law concept of the real and serious need to keep certain marks free for other competitors to use and the idea/expression dichotomy. There was some mumbling about IP rights given to ‘undeserving’ subject matter such as databases and the Magil-type compilation, but the fact that we’ve arguably got in wrong in these exceptional areas doesn’t mean that there isn’t sound, competition-based reasoning at work in the heart of the ‘core’ IP rights.

The IPKat also noticed a tendency among the competition lawyers to view IP rights as the equivalent of tangible property rights. This is an oversimplification, particularly when one looks at the limited ways in which certain IP rights can be infringed. This might work to the advantage of IP lawyers since competition lawyers seem to recognise that property rights are necessary in our economy but it’s hard to see how the analysis can be accurate if it starts on an assumption about a highly debatable premise.