Propriété intellectuelle, concurrence et régulation – limites de protection et limites de contrôle

In the European Union, competition policy regarding intellectual property related restrictions of competition has considerably changed in orientation. Whereas in the field of contractually agreed upon or concerted practices (Art.81 EC Treaty) licensing agreements, namely agreements on the ?transfer of technology?, benefit from a generous group exemption regulation, and whereas patent pools are assessed quite liberally, unilateral practices (Art. 82 EC Treaty), in particular refusals to licence and even patenting strategies, are looked upon with vigilance. This has not only resulted in some contradictory policy statements, but also led to an increased potential for conflict between the property owner?s autonomy of acquiring and exploiting his exclusive rights and the rules on competition, which all require a re-examination of the relationship between the system of protection of intellectual property, in particular the patent system, and competition law. Contrary to a generally held view, according to which the objectives of the system of intellectual property and of the rules on competition are complementary, the author sees the grant and the protection of exclusive rights as a sub-system of a competition-based ordering of markets, whose purpose is to promote inter-technology competition by enabling enterprises to enter into such competition for substitute technologies. Competition law, in its turn, is supposed to maintain a system of undistorted competition. As such, it is directed against any restriction of competition. It is not, however, aimed at correcting the system of intellectual property either in general or on a case-by-case basis, nor meant to compensate for any deficits of the system of protection. Rather, such ?regulation? of protection is a matter of the proper design and of the judicious application of the property system, of its limits, and of its inherent ?exceptions?. With this in view the author develops the idea of a functionalist and contextual construction of the reach of protection and of the implementation of its objectives, both of which will help to better understand and to circumscribe with more precision the autonomy, which the owner enjoys as regards the acquisition and the exploitation of exclusive rights. This thesis then is illustrated by a new approach to the conflicts, which may exist between patent protection and the concept of ?open standardization?.