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Archive for October 26th, 2010

Patent = Monopoly

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Many antitrust cholars are reluctant to equate an IPR with a monopoly. This is because, under conditions of equal access to capital and investments, any firm can also benefit  from the protection of IPRs, and challenge the monopoly holder with innovative, IPRed products/services.

Our supreme judges in Luxembourg seem however to be a little less cautious. At para 64 of C-468/06 to C‑478/06, Sot. Lélos kai Sia EE and Others v GlaxoSmithKline AEVE, [2008] ECR I-7139, the Court of Justice held that:

a medicine is protected by a patent which confers a temporary monopoly on its holder, the price competition which may exist between a producer and its distributors, or between parallel traders and national distributors, is, until the expiry of that patent, the only form of competition which can be envisaged“.

This wording is unfortunate. The Court seems unaware of the fact that within a same relevant market, there can be competition amongst various patented products.

(Image possibly subject to copyrights: source here)

Written by Nicolas Petit

26 October 2010 at 9:11 am