Immaterialgüter- und Wettbewerbsrecht

Anticompetitive Innovation: the Case of Blocking Patents

The research project aims to assess strategic patent acquisitions, in particular whether procurement of blocking IP rights for the purpose of obstructing R&D efforts of rival undertakings can be deemed anti-competitive and qualified as an abuse of dominance in terms of the Article 102 TFEU.

Last Update: 11.02.14

The research project examines strategic acquisitions of IP rights, whereby research-based undertakings seek to procure patents for the purposes of precluding potential development of substitute inventions by other undertakings rather than for the purposes of protecting their invention against imitation (blocking patents). The premise followed considers patent applications as well as further reliance on the exclusive property rights as legal means in the process of competition. It is acknowledged that IP rights are essential elements of an open market economy; nonetheless from a competition policy perspective the case of blocking patents is identified as raising concerns in terms of competition for innovation. In instances where IP rights turn out to be ends in themselves and are not used as genuine protection of the underlying technology but are instead intended for obstructing R&D efforts of other firms, it is considered that such practices may distort incentives to innovate, limit technical development and in turn lead to less choice for consumers.

A further research question considers to what extent the current legal framework is applicable to blocking patents and under what conditions this practice can be considered as an abuse of dominance. There is no legal precedent in EU law addressing such patenting practice. Moreover, until recently the governing paradigm relevant to the IP-competition intersection explicitly disregarded the acquisition of IP rights and considered only the exercise of these rights on the downstream markets as falling in the scope of competition law. The latest developments of the competition policy whereby the focus is on economic effects rather than pre-defined schematic solutions, as well as the Pharmaceutical Sector Inquiry and the AstraZeneca case, offer a new framework to analyse acquisitions of blocking patents in terms of its actual effects for competition process.

The analysis concludes that the role of competition law in challenging patent acquisitions is limited to extreme cases and intervention is only warranted provided an effective restriction of dynamic competition is established.


Doctoral Student

Gabriele Venskaityte

Doctoral Supervisor

Prof. Dr. Josef Drexl

Main Areas of Research