IPKAT AT ATRIP

The IPKat has just enjoyed the last hurrah of this year’s ATRIP conference in Parma, the theme of which was ‘Intellectual Property and Market Power’. There were too many good papers to name individually (the Kat believes that they will eventually go up on the ATRIP website), so instead he will mention a few thoughts which crossed his mind as a result of the conference:

*What competition lawyers understand by market power and the more colloquial definition of the term adopted by IP lawyers is a little different (the IPKat wasn’t the only one to make this observation during the conference)

*There was a particularly strong focus on the role of IP in development, even in sessions where that was not the main topic of disucssion

*Something that has been bothering the IPKat for quite a while (and which IPKat co-blogmeister Ilanah plans to write on, just as soon as she clears her desk...) Somewhere, sometime, someone appears to have implicitly fixed the ‘correct’ nature of the various IP rights. This crops up in various guises. For example: the competition law idea of abuse of an IP right suggests that there is a right and a wrong way to use the rights and the same thing underlies the ECJ’s beloved existence/exercise dichotomy; the ECJ has also spoke on the essential and other functions of trade marks and the specific subject matter of many other IP rights. The same court has held that trade mark owners can only protect their ‘legitimate’ interests. This same term, ‘legitimate’ crops up in Art.30 of TRIPs, but in relation to the rights of third parties under patent law. The same article talks of the ‘normal exploitation’ of the rights, the implication being that some activites are abnormal, and therefore not allowed. Who decides what is normal/abusive/legitimate etc and by what authority. How (if at all) is this concept linked across the various IP rights? The IPKat would be particularly interested to hear from his readers on this issue.