Department

Intellectual Property and Competition Law

Definition of the Institute’s research topics begins with a spatial matrix comprised of three research axes.

- Principles and Functions of Intellectual Property Law and Competition Law
- Configuration of Intellectual Property and Competition Law
- Intellectual Property and Competition Law in Different Economic Areas

These research axes each contain numerous research priorities that can be redefined over time.

 

Research Axis
I. Principles and Functions of Intellectual Property Law and Competition Law

 

Research Axis
II. Configuration of Intellectual Property and Competition Law

 

Research Axis
III. Intellectual Property and Competition Law in Different Economic Areas

 

Intellectual property and competition law serve as tools of market regulation. Their function consists in guaranteeing, in accordance with the principle of a free market economy, the distribution of the market revenues following the principle of economic performance. For this, both legal areas are in dialog with each other as well as with a number of other regulatory systems applicable to the market economy. The research axis “Configuration of Intellectual Property and Competition Law” is dedicated to the challenge of analysing the operating principles of markets in order to identify the necessity of a regulatory intervention and, if necessary, to define its terms.


Intellectual property rights as well as competition law are regulatory tools whose function is to influence the behaviour of market participants. These regulations interact with a number of other legal systems which pursue very different aims, such as general civil law (especially contract law), tax law, social law or environment law.


In principle, market participants themselves are in the best position to assess the constantly changing conditions and to dynamically adapt their behaviour. However, markets do not simply function without further effort, which might be desirable from the perspective of overriding principles. In particular, when individual benefits are missing, additional negative or positive incentive mechanisms may be necessary to induce certain patterns of behaviour. To this effect, for example, competition law prohibits restrictions of competition, such as abuse of market dominance or collusion; whereas, in a positive sense, property rights should result in behavioural and especially investment incentives.


How markets function in practice depends on a variety of factors. Completely different incentives can emanate from the type of competitive pressure that prevails in various markets alone. The nature of the incentive is decisive as to whether and how certain legal arrangements impact individual markets. It is thus essential to correctly understand those driving mechanisms to which market participants react. Legal systems that are intended to influence behavioural patterns can only fulfil their function if the specific market mechanisms are known. If legal norms – for example property rights – are based on an erroneous understanding of the behavioural patterns of certain players, these norms risk unleashing dysfunctional effects.


In view of the objective of steering the behaviour of market participants in certain directions, competition and intellectual property law fulfil complementary functions, albeit with different regulatory mechanisms. This has a particular impact on the behavioural patterns that lie at the interface between both fields of law. In particular, exclusivity (guaranteed by property rights or existing de facto) can grant individual or many market participants an independence that ultimately threatens the interests of other market participants or the general public. Accordingly, the configuration of intellectual property as well as of competition law – including the mechanisms of law enforcement – requires a thorough understanding of the causal relations in the respective market context.

II.1 Technology-driven markets

Technology-driven markets vary considerably with respect of their economic and competitive conditions. The role of patents in these markets can differ accordingly. While in the pharmaceutical and chemical industries, patents primarily allow companies to recoup their investments, in other sectors the traditional rationale for patent protection often takes a backseat to other, more strategic motivations. At the same time, the digitisation of the economy is leading to a radical revolution in traditional industries such as the automotive or the mechanical engineering sectors. As a result, players in traditional industries run the risk of becoming dependent on the rights of third parties in different technologies, while at the same time facing a risk of increased transaction costs. The configuration of the intellectual property regimes is a central question for fundamental legal research. In order to approach this problem adequately and to ensure comparable competitive effects across markets, the specific characteristics of different markets and industries need to be appropriately considered.


Technology-driven markets are those in which competition takes place primarily on the basis of technological innovation. Though technological progress lies at the centre of them all, they can vary considerably regarding their economic and competitive conditions.


The pharmaceutical, chemical and biotechnology industries, for instance, are characterised by high research and development costs, but have relatively low imitation costs. Patents play a significant role in these industries in avoiding imitation and allowing companies to recoup their investments. By contrast, in industries where imitation costs are high (e.g. the aeronautical industry) or where protection is easy to circumvent (e.g. the software and ICT industries), the importance of patent protection is more questionable. Nevertheless, patents are also applied for in those industries. The traditional rationale for patent protection, however, frequently takes a backseat to other, more strategic grounds. Thus, companies often use patents as bargaining chips, as a signal for capital investors, to block competitors or to safeguard their own commercial freedom. Where a significant segment of market participants apply for patents and see them granted, it may be difficult for the remaining participants to buck this trend. The result is an “arms race” with severe – though empirically not yet sufficiently examined – consequences for market transparency, market participants’ commercial freedom and market entry opportunities of third parties.


Moreover, technology-driven markets are not static at all and do evolve regarding their functioning and protection needs. They respond intensely to societal, economic and technological changes. The digitisation of the economy, for instance, is leading to a radical revolution in traditional industries such as the automotive or the mechanical engineering sectors. Not only are the production, supply and sales conditions changing, new technologies (e.g. intelligent cars) and completely new players are entering these markets. As a result, players in traditional industries run the risk of becoming dependent on the rights of third parties in different technologies, while at the same time facing a risk of increased transaction costs. Additionally, processes relevant in other fields of technology – such as standardisation with all its pitfalls (e.g. lock-in) – may likewise become relevant.


In order to unfold its positive effects, the regulation of technology-driven markets must sufficiently take into account both the role that IPRs play for the functioning of a given market as well as their impact on the particular competitive market conditions and market developments. The design of the IPR regime is a central question for fundamental legal research. In order to approach this problem adequately and to ensure comparable competitive effects across markets, the specific characteristics of different markets and industries need to be appropriately considered. Otherwise, by trying to abstractly apprehend manifold facts and situations irrespective of specific market conditions, there is a serious risk of over- or under-protection.

Further research project
Intellectual Property and Competition Law

Bridging the Gap between the Intellectual Property Regime and Clean Technology Transfer

Zhongfa Ma 

 
Further research project
Intellectual Property and Competition Law

Modernisation of European Copyright Rules

Prof. Dr. Reto M. Hilty, Dr. Valentina Moscon (Project coordinator), Andrea Bauer, Dr. Silke von Lewinski, Ricarda Lotte, Heiko Richter, Moritz Sutterer, Tao Li

 
Dissertation
Intellectual Property and Competition Law

Regulating Fintech Innovation – An Appraisal of The Intersection of Consumer Protection, Data Protection, IP and Antitrust Law

Jörg Hoffmann

 
Further research project
Intellectual Property and Competition Law

Standard-Essential Patents and the Role of Standard-Setting Organizations

Prof. Dr. Josef Drexl, LL.M., Prof. Dietmar Harhoff, Ph.D., Pedro Batista, Dr. Beatriz Conde, Dr. Fabian Gaessler, Martin Husovec, Dr. Peter Picht, Dr. Gintarė Surblytė, Charalampos Tsilikas, Alina Wernick

 
 

II.2 Content-driven markets

The regulation of content-driven markets has the task to improve the functioning of these markets, especially in view of advancing digitalisation. This can be particularly challenging due to different national legal frameworks, the heterogeneous nature of industrial sectors, the great diversity of interests and constant developments in these markets. Legal research in this area aims at analyzing the dysfunctional effects of the current legal framework and offering alternatives for the appropriate regulation of different digital content markets. To this end, not only intellectual property and competition law should be considered, but also other legal regimes in their respective changing contexts.


Digitisation is increasingly shaping the economy. Content-driven operations are common in nearly all sectors of the global economy today. The functioning of the related markets is of crucial economic relevance; it impacts in particular social growth, which largely depends on the unhindered dissemination and availability of digital contents. The primary aim of legal regulation should be to enhance the functioning of these markets which, however, have an increasingly global scope. This is particularly challenging in view of the fact that different (territorially separate) rights and diverse interests come into play. The complexity of legal regulation also derives from the fact that content-driven markets encompass industrial sectors with a highly heterogeneous nature and individual peculiarities; the print, film and music markets, for example, differ from the software market. In some markets, previously unknown stakeholders play an increasing role and have even become dominant players. They begin as start-ups, but in a comparatively very short period of time some of them evolved into giants (such as Google and Facebook). This partly or entirely shifts the balance that legislation may have achieved in analogue content markets and argues in favour of adjusting existing rules and even devising completely new legislative approaches.


Legal research in this area needs to focus on the interplay of several legislative layers, including intellectual property and competition law. The objectives of such legal mechanisms may vary in different fields. For this reason it is important to understand their shifting interrelationships in changing contexts in order to set up an appropriate regulatory framework for different digital content markets.


Geo-blocking and other related practices of content providers serve as good examples to study such interactions. Currently geo-blocking is mainly practiced in relation to copyright-protected digital subject-matter. Keywords such as “price discrimination” or “segmentation of markets” describe the focus of a competition law analysis; whereas, “territoriality” or “knowledge circulation” are issues of research in intellectual property law. Furthermore, one of the core issues also focuses on the implications of fundamental rights at stake, including freedom of expression.


At the same time the question needs to be asked whether it is indeed desirable to generally ban geo-blocking as intended by the EU Commission in its envisaged “Digital Single Market”. Certain considerations might suggest that such practices ought to be allowed. In addition, new Internet-based business models challenge traditional approaches that possibly might not survive in the online value chain. One example is the distribution of revenue between authors or performers, on the one hand, and exploiters, on the other. Such questions arise due to the fact that digital content is increasingly exploited by media companies which devise new ways to evade the payment of fair remuneration previously ensured to authors and performers. It goes without saying that all this heavily impacts the balance of interests between different players.


In dealing with such situations, the first objective in this main area of research is to identify specific problems and to analyse the dysfunctional effects of the current legal framework on the content-driven markets. The findings of corresponding investigations should explore rules that allow for a better and more effective functioning of the related markets while considering all rights and interests involved.

Further research project
Intellectual Property and Competition Law

Modernisation of European Copyright Rules

Prof. Dr. Reto M. Hilty, Dr. Valentina Moscon (Project coordinator), Andrea Bauer, Dr. Silke von Lewinski, Ricarda Lotte, Heiko Richter, Moritz Sutterer, Tao Li

 
Dissertation
Intellectual Property and Competition Law

Spezifische Schranke für Kreativmärkte – Kanada als Vorbild für Deutschland und die EU

Andrea Bauer

 
 

II.3 Data-driven economy

Business models in the digital economy are increasingly based on the collection, analysis and use of data. The data-driven economy and its corresponding innovations impact almost all areas of the economy and life. This raises numerous questions in the fields of competition, intellectual property and data protection law. In public discourse, such questions are often discussed under the heading of vague buzzwords, such as “Big Data”, the “Internet of Things” and “Industry 4.0”. In particular, scientific research addresses the legal framework for ensuring access to data and its potential allocation. Further, the field of “artificial Intelligence” bears massive legal and societal implications and highlights the need for research of various kinds. Most notably, self-learning algorithms that make decisions autonomously and realise their goals independently shed a new light on traditional legal issues.


The rapidly developing possibilities for the collection and processing of huge amounts of data fundamentally characterise the economic cycle and affect more and more areas of life. Numerous technological developments based on digitisation go hand in hand with a range of economic effects. The resulting phenomena are discussed under the heading of vague buzzwords, such as “Big Data”, “Industry 4.0”, “data-driven innovation” and the “Internet of Things”. Data-driven business models already characterise the value creation in many sectors which go far beyond the traditional Internet economy (e.g. the automotive and insurance industries, the healthcare sector).


“Artificial intelligence” (AI) is a particular aspect of the data-driven economy. In particular, AI deals with self-learning algorithms that make decisions autonomously and realise their goals independently. Autonomous driving serves as an oft-cited example, yet, revolutionary and disruptive effects stemming from AI are expected in almost all economic sectors and areas of life (smart homes, smart cities, etc.).


For the design of the law and its application, the data-driven economy in general and AI in particular raise a large number of substantive and methodological questions which relate to both private and public law. Apart from competition and intellectual property law, which aim to foster innovation, the focus lies on the laws concerning the protection of personality rights, data, and consumers (keyword: “information self-determination”), as well as on the general civil law. In particular, research needs to consider the connections between the affected legal regimes and the interactions resulting from that.


Contouring the term “data” and delineating “personal” from “non-personal” data are key challenges. These legal terms determine – apart from other demarcation criteria, such as the temporal relevance of data – the applicability of different legal regimes. At the same time, treating data as economic assets inevitably leads to the question whether rights in data (be they rights of use or rights of access) should be attributed. Conversely, one can ask how the voluntary provision of data (in line with open-data approaches) can be promoted. Should AI create something novel, questions regarding the allocation of rights are presented in a new light.


Control over data can strengthen economic power. Furthermore, so-called “deep learning algorithms” which address models of pricing and terms can restrict competitive diversity. Competition law discourse takes up the corresponding effects. Complex questions concern the definition of markets in the data-driven economy. In addition, it is necessary to assess the link between data or algorithms and market power as well as the abuse of a dominant position. The development of robust approaches in the field of competition policy is crucial as this strongly relates to the question of how to regulate in order to correct market failure by allocating corresponding resources. Finally, the mechanisms for the enforcement of competition law in data-related markets also need to be reconceived.


From a European perspective, the typical cross-border, instant transferability of data leads to questions regarding the realisation of the “free flow of data” within the internal market. At the same time, technical and economic questions arise concerning the transfer of data to and from third countries. The effectivness of possible regulation significantly depends on sector-specific mechanisms and on institutions for the legal enforcement.

Dissertation
Intellectual Property and Competition Law

Competition Law and Algorithmic Personalized Price Discrimination in Data Economy

Germán Johannsen

 
Dissertation
Intellectual Property and Competition Law

Die Bedeutung von Daten in der Fusionskontrolle

Dennis Kann

 
Dissertation
Intellectual Property and Competition Law

Die Rolle der Datenportabilität in der datengetriebenen Wirtschaft zwischen Rechtsschutz und Zugang

Jure Globocnik

 
Dissertation
Intellectual Property and Competition Law

Die Zulässigkeit von Preisdiskriminierung mit den Mitteln des Profilings

Klaus Wiedemann

 
Dissertation
Intellectual Property and Competition Law

Global Convergence of Data Protection Norms: Agenda for Trade and Development

Shraddha Kulhari

 
Dissertation
Intellectual Property and Competition Law

Health as a Digital Business: Health Data Pools Under European Data Protection and Competition Law

Giulia Schneider

 
Dissertation
Intellectual Property and Competition Law

Possibility of Creation of Copyrightable Works by Artificial Intelligence

Luciano Marchione

 
Further research project
Intellectual Property and Competition Law

Regulation of the Digital Economy

Prof. Dr. Josef Drexl, Prof. Dr. Reto M. Hilty, Carolina Banda, Francisco Beneke, Luc Desaunettes-Barbero, Dr. Michèle Finck, LL.M., Jure Globocnik, Dr. Begoña Gonzalez Otero, Jörg Hoffmann,  Daria Kim‎, Shraddha Kulhari,  Michael Mertel,  Heiko Richter, Stefan Scheuerer, Peter R. Slowinski, Jannick Thonemann, Klaus Wiedemann

 
 

II.4 Commercial communication

In the information society of the 21st century, with its increasing networking of different markets and actors, a well-functioning commercial communication is becoming more and more important. Trade marks and other distinctive signs are instruments for this communication. They offer competitors a means of product differentiation, guarantee consumers a certain degree of market transparency and thereby promote price and quality competition. Thus, appropriate protection for distinctive signs is a central prerequisite for well-functioning and undistorted competition. Within this system of undistorted competition, the rules of antitrust and unfair competition law have to ensure the freedom and fairness of market communication. An optimal design of these legal instruments requires understanding of the relevant market mechanisms and interactions of market players. Basic research on commercial communication must examine these relations.


In the information society of the 21st century, it is not only emerging new markets that can be largely shaped by the design of intellectual property and competition law. The increasing networking of different markets and actors makes the situation on the marketplace more and more complex and opaque. These developments increase the risks of an information deficit and behaviour on the part of market players, which may have a negative impact on the relevant markets and a dysfunctional effect on competition, eventually hindering innovation. The adequate availability and efficient transmission of market-relevant information require legal instruments and rules oriented towards efficient commercial communication.


Such intsruments include primarily trade marks and other distinctive signs. For market players, they provide important points of reference in business competition. They make possible the identification of products’ commercial or geographical origin, enable one to distinguish the goods or services from competing products, and communicate further information about the offer, especially via advertising and marketing. As a result, for competitors, distinctive signs are a means of product differentiation, they create a certain degree of market transparency in favour of consumers, and in this way promote price and quality competition. Appropriate legal protection for distinctive signs, which avoids both dysfunctional overprotection and institutional protection deficiencies, is a central prerequisite for effective competition without distorting effects.


Competition law and, in particular, unfair competition law – including the protection of trade secrets – likewise have an important regulatory and control function with regard to the necessary exchange of information in the marketplace. An essential task of these legal instruments is to ensure the freedom and fairness of market communication within the constitutional order. For example, the prohibition of misleading advertising or the obligation to disclose certain information provide the framework for informed decision-making on the part of market players, thereby contributing to undistorted competition which is the breeding ground for innovation.


Basic research on commercial communication requires first of all an understanding of how certain market mechanisms work and the relevant market players interact. It is only through this understanding that conclusions can be drawn as to how the dynamic development of competition can be promoted by means of legal instruments in such a way that both the necessary information is available and an efficient information transmission is functioning.

Dissertation
Intellectual Property and Competition Law

Trademark Rights and Consumer Perception – The Tension Between a Normative and an Empirical Assessment of Consumer Perception in EU Trademark Law

Lotte Anemaet

 
 

II.5 Enforcement and dispute resolution

Substantive law and judicial as well as extra-judicial means of enforcement are two sides of the same coin. This is particularly true for intellectual property and competition law. While on the one hand, efficient enforcement tools are urgently required, on the other it must at the same time be ensured that corresponding enforcement measures do not overemphasise substantive law positions. Otherwise, dysfunctional effects may result, which bear the risk of contradicting the pro-innovation and pro-competition goals of intellectual property and competition law. The purpose of basic research in this main area of research is to develop balanced and just solutions within this maiarea of conflict between efficiency and the potential dysfunctionality of enforcement systems, including court actions and alternative dispute resolution means such as mediation and arbitration.


The ultimate scope of intellectual property rights as well as competition law rules only becomes evident in the corresponding enforcement actions. The full effectiveness of substantive law is contingent upon the applicable legal system providing efficient law enforcement tools. Enforcement-related rules as such, however, can already form the basis of dysfunctional and accordingly counterproductive incentives. For instance, in relation to the intellectual property rights under consideration, the bifurcation principle as applied under German patent law can overemphasise the enforcement of substantive rights, all the more so in view of infringement courts being bound by the decisions on validity. Inefficient or inappropriate enforcement, however, endangers not only innovation and creativity but can also negatively impact general users’ interests as well as competition, and in a broader context ultimately cross-border trade. At the same time, the close link between substantive law and enforcement implies that enforcement systems have the potential to adjust the malfunctions of substantive law provisions. As can be seen from the developments surrounding standard-essential patents, competition law is a particular means of adjustment in this regard on which presumed infringers can seek to rely in order to avoid unjustified claims.


The challenge of providing effective legal protection on the one hand and at the same time not to overextend substantive law provisions is all the greater in that procedural provisions continue to be national in nature while IP and competition law as such do have a strong international dimension. The consequential effect within a globalised economy is that an effective enforcement requires a coordination of substantive and procedural rules of all jurisdictions that are relevant for the respective case in dispute. This interaction of parallel legal systems as a necessary part of cross-border enforcement typically leads to frictional loss and provides opportunities for strategic behaviour. In addition, the parties in dispute will usually have to expect enormous costs. To counteract these problems, supranational court systems such as the Unified Patent Court have conceived on the European level in order to harmonise and thereby facilitate both the enforcement of IP rights and corresponding means of defence.


At the same time, alternative dispute resolution is on the rise, due to the fact that respective arbitration and mediation proceedings allow for global, uniform and thereby efficient solutions. Alternative dispute resolution, however, also entails the risk of dysfunctional effects, in particular where public interest, for example, as reflected in competition law, is ignored by parties, mediators or arbitrators within the framework of mutual dispute resolution procedures. Further challenges result from arbitration proceedings conducted in connection with investment protection agreements.


The purpose of basic research in this main area of research is to develop law enforcement and dispute resolution tools in the field of IP and competition law that satisfy the need for effectiveness and at the same time balance the relevant interests.

Dissertation
Intellectual Property and Competition Law

Der „fliegende Gerichtsstand“ im deutschen und europäischen Lauterkeitsprozessrecht – eine Untersuchung de lege lata und de lege ferenda

Benedikt Hammerschmid

 
Dissertation
Intellectual Property and Competition Law

On Illegality Judgment of Business Behaviors Based on Data Analysis in China, the EU and the U.S. - In the light of personalized pricing

Lixia FU

 
Habilitation

Patent Law Harmonization in the EU Under the Jurisdiction of the Unified Court (Chances, Risks, Implications)

Justyna Ożegalska-Trybalska,

 
Dissertation
Intellectual Property and Competition Law

The Doctrine of Equivalence in German and English Patent Law. Quo Vadis?

Martina Ninajova

 
Further research project
Intellectual Property and Competition Law

The Public Dimension of Private Antitrust Enforcement: A Public Policy Approach

Leonardo Peixoto Barbosa

 
Dissertation
Intellectual Property and Competition Law

Unjustified Threats of Patent Infringement - Intellectual Property Approach or Unfair Competition Approach?

Minyu Zheng