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

 

The territoriality principle in the fields of intellectual property law and to a certain extent in competition law, is meant to ensure that the sovereign decisions of the legislature in regard to the granting and scope of rights are respected. Due to internationalisation of communication and trade, the traditional approach towards territoriality has been increasingly modified, bringing forth new facets of the underlying principle. This concerns, firstly, the tendency towards harmonisation or unification of the law within regions that are geographically or economically connected, but also on the international level. Secondly, it involves the dialogue and – where necessary – the resolution of tension between different economic areas and the respective jurisdictions. In order to resolve concrete disputes, the traditional mechanisms of private international law, as well as the development of new dispute resolution strategies are instrumental.


Traditionally, intellectual property rights are subject to the principle of territoriality. They are bound in their existence and scope to the territory of the State or supranational entity in which they entered into force or have been recognised. In principle, it is for the respective sovereign States or entities to determine the forms of protection deemed appropriate to achieve – or to avoid – effects that are considered (un)desirable for economic, social or cultural reasons. While, as a consequence of the effects doctrine, the adjacent area of competition law is not equally determined by the territoriality principle, it is likewise subject to the sovereignty of the national legislature.


The interdependency between legal configuration and socio-economic and cultural effects typically leads to the emergence of uniform or harmonised protection systems in closely linked and homogeneous economic areas with regard to their level of development. This applies in particular to the EU; however, it is also valid, for instance, for the countries of the Andean Community. Furthermore, against this backdrop, a dialog on an international level between different regulatory models can arise with the aim of optimising as well as harmonising the respective legal systems, where appropriate. Such dialog is supported by a dense and expanding network of international agreements, which has developed on the basis of the Paris and the Berne Conventions and has culminated but in no way concluded with the TRIPS Agreement. Especially in the case of an imbalance of power between the States involved, it may occur that regulatory models are imposed which are ill-suited to the situation of individual contracting parties, thus broaching the issue of potential protection and relief mechanisms.


As long as national and regional legal differences remain, solution mechanisms must be made available for cases whose effects occur cross-border or globally. This includes the instruments of international private law, which are confronted with new challenges due to the increasing globalisation of communication and commercial interaction. However, it is also about the creation of new solutions, which could be anchored in substantive law, or strategies that originate from the co-existence and equality of different legal orders and achieve a balance of interests on that basis.

III.1 Realisation and perspectives of the European internal market

While the aim of the internal market is clearly visible in the field of competition law, the question in the field of intellectual property law is how dense harmonisation needs to be or is appropriate, including whether and to what extent unitary rigths are appropriate beyond those currently existing. Here, questions regarding the co-existence of parallel regulation systems also arise. Moreover, the influence of the jurisprudence of the CJEU on intellectual property rights in the internal market requires particular attention, all the more since the CJEU is not specialised in civil law or intellectual property law. Further important questions in the area of the European internal market include the complex interaction of European and national procedural law, applicable law, the system of judicial cooperation in the field of civil law and increasingly harmonised contract law.


There are manifold influences of European law on the developments in intellectual property and competition law; they go back to the beginnings of the European process of integration. The key questions focus on the political aim of the EU internal market and, to this extent, on the functioning of these areas of law. The orientation towards the internal market is most clearly visible in the field of European competition law, which, as regards the goal of integration, fulfils a function that differs from the one of national regimes of competition law.


In contrast, the question of “how much of Europe” is required to reach the aim of the internal market in the field of intellectual property rights – including unfair competition law – is more complex. Here, the question is whether, in which areas, and in which form further steps are necessary and appropriate for the establishment of the internal market. In this context, the interest in efficiency and legal security of cross-border activities and in particular the subsidiarity principle must be taken into account. It is not only the balancing of co-existing national and Union-wide protection systems that is at stake; rather, the internal market presupposes at the level of national protection systems the proper density of harmonisation. It is a challenge to assess such density. Insufficient harmonisation may impede the four freedoms of the Treaty, while a too far-reaching legal harmonisation threatens to eliminate the positive effects of competition among legal systems.


Regarding the question of the necessity and scope of supranational protection systems, the effects of existing Union rights, including the newly introduced Unitary Patent System, on European competitiveness are of note. In the medium term, the question of a unitary copyright law is being discussed, since the existing, quite comprehensive, though only selective harmonisation in the field of copyright has not been able to prevent the separation of the EU market along internal borders, which seem anachronistic in the age of the Internet. However, one has to take account of the aspect of cultural diversity as a possible counterargument.


Furthermore, questions arise in the context of the effects of legal harmonisation and the creation of unitary rights; such creation has partly resulted in novel legal questions in respect of the coordination of structures and the substantive legal development, due to the coexistence of parallel regulation systems at the national and EU levels. Moreover, the influence of the CJEU jurisprudence on intellectual property rights in the internal market is of particular significance. Decisions of the CJEU may deepen the understanding of rules; however, quite often they result in new questions and in legal uncertainty. The mere fact that the CJEU perceives itself as a court based on European law rather than being specialised in civil law or intellectual property law tends to result in a sceptical reception within the specialised circles at the national and supranational levels.


In European law, further important questions arise beyond intellectual property and competition law. For example, one may think of the complex interaction of European and national procedural rules, of questions of applicable law, or the system of juridical cooperation in civil law, as well as of the continuous consolidation of principles of contract law, which open new perspectives especially for contracts on intellectual property rights.

Dissertation
Intellectual Property and Competition Law

European Patent Litigation: Heterogeneity in a Harmonized System - Essays on the Law and Economics of European Patent Litigation

Raphael Zingg

 
Further research project
Intellectual Property and Competition Law

Populism and Antitrust. Institutional and Enforcement Facets

Dr. Maciej Bernatt

 
 

III.2 Legal development in non-European jurisdictions

Due to different socio-cultural and economic contexts, jurisdictions outside the European Union have their own market structures and dynamics of innovation. This pluralism results in the diversification of market offers, business models and legal frameworks. These new aspects can lead to a rethinking of national, regional and international legal frameworks in the field of intellectual property and competition law. Legal research in this area enables not only the study of successful legal frameworks from non-European countries, but also of the question whether this multifaceted regulation on a global scale is actually able to promote innovation and a functioning competition in the market.


Jurisdictions outside the European Union have their own economic, political and legal environments, which have arisen and evolved as a result of their individual histories, cultures, socio-political constructs and moral and ethical fibre. These contextual differences have led countries (especially, but not exclusively, developing countries) to develop diverse socio-cultural and economic goals, resulting in unique market structures and innovations. As technology and international trade shrink the globe into a village, these innovations and market conditions are of increasing interest and value to the global citizen. As a direct consequence of this phenomenon, the diverse socio-economic and legal environments within which these innovations and competition have been sustained and evolved also take on increasing interest and present multiple avenues for global learning and exchange.


Interest in a growing variety of innovations and in creating competitive markets leads on the one hand inevitably to increasing diversification of the products, processes and services that are being traded, and on the other to novel competitive frameworks and business models. Each of these, in turn, affects, and is affected by, existing national, regional and international legal instruments and agreements such as TRIPS. In relation to competition law and policy, particular market conditions existing in each country often lead to the adoption of different mechanisms to promote efficiency and consumer welfare, providing a rich source of learning and information for other countries. This phenomenon further results in diverse interpretations of instruments which pursue the harmonisation of laws, and in some instances, also calls for a re-assessment of these laws to further facilitate mutually advantageous international trade and equitable economic development across the globe.


Research on this theme seeks to determine on the one hand whether current national, regional and international laws and policies promote, protect and support the dissemination of such diverse forms of innovation in an equitable, efficient and ethical manner, and on the other to recognise and support innovative business models and foster competition in diverse market conditions. At the same time, it also aims to promote exchange and learning from the legal and policy frameworks of countries outside the EU that have been successful in promoting, protecting or supporting a wide dissemination of useful products, processes and services, or have successfully permitted the evolution of unique market structures and competition. Finally, an analysis is also undertaken as to how legal diversity as gathered, inter alia, from legal orders and instruments can impact innovation and competition on the global level.

Further research project
Intellectual Property and Competition Law

A Judicial Approach to the Grant of Exemptions to Administrative Monopolies in Chinese Competition Law – With Comparative Reference to Article 106(2) TFEU

Xue Gan

 
Dissertation
Intellectual Property and Competition Law

BRICS Countries: A New Source for International IP law? The Case of Pharmaceutical Patents

Irina Weissert

 
 

III.3 International law

This main area of research deals with structures and developments of international treaties and conventions that address the regulation of innovation and competition. The focus of the Institute in this field includes the interaction between international and national law. The aim is to identify structures within the existing international legal framework, to improve the coordination of existing and future regulations and to detect leeway for complementary regulation. In times of globalisation, international collaboration needs to be strengthened while at the same time respecting necessary State sovereignty. Differences between developing and developed countries as well as the protection of important legal interests (such as public health, nutrition, climate protection, human rights and education) should be considered.


Competition and innovation have gone through an exponential process of globalisation during the last century, while fürther development of the law has to a large extent remained tied to the notion of national sovereignty. The international legal system only reacts slowly and sporadically to challenges concerning the regulation of competition and innovation in international markets brought about by globalisation. Not only the interaction between competition and innovation, but also between the promotion of innovation, on the one hand, and the protection of potentially conflicting State objectives, on the other (such as public health and nutrition, climate protection, biodiversity, education, human rights, social stability and sustainable economic development) is often unclear. Additionally, agreements, organisations, and other stakeholders are insufficiently linked and coordinated at the international level. As a result of all this, the legislator is confronted with considerable challenges. In particular, a situation may arise where contradictory solutions are proposed to resolve these tensions and to find answers to legal-normative questions. On the one hand, this plurality leads to a certain degree of legal uncertainty, but on the other it provides a variety of different perspectives.


This main area of research deals with the development of different international legal systems and their institutional structures as far as they generally concern regulation of innovation and competition. The aim is to address the conflicts between different areas of law regarding their content and objective, the tension existing between industrialised and developing countries, and the tension between setting standards on a global scale and the need to leave enough leeway for national solutions.


The subject-matter of the research includes multilateral treaties defining a legal framework within which States can make use of their sovereignty to regulate innovation and competition. This concerns treaties explicitly regulating intellectual property (such as the Paris Convention, the TRIPS Agreement, etc.), but also those which merely touch on questions of intellectual property or competition law among many other issues (investment protection agreements, environmental protection agreements, etc.). The pursuit of international harmonisation (of law) has created a steadily growing, complex set of rules whose interfaces have rarely been subject to research.


Further in the light of growing difficulties regarding the implementation of multilateral approaches, bilateral and regional treaties play an increasingly important role. This includes bilateral investment protection and free trade agreements (FTAs), economic partnership agreements (EPAs), the promotion of development and comprehensive regional integration agreements. These different approaches have one thing in common: they create special rules between the signatories. These go beyond global standards and thus lead to a further fragmentation of the international legal system. Meanwhile, in many of these treaties, intellectual property rights are regulated in such detail that hardly any leeway remains for an appropriate national implementation. As a result, developing countries in particular have to a large extent lost the flexibility to regulate innovation and competition in line with their own development prospects within their borders. Developing countries respond to these developments by intensifying regional cooperation among themselves. However, these agreements focus on typical developmental interests and attempt to address issues which are ignored in multilateral treaties.


Research in this area can take different approaches. The starting point of research in this field is the demonstration of contradictions and economic dysfunctionalities within the existing system. On this basis, the existing legal system can be accepted as given, while focusing on a better coordination of conflicting legal rules, especially with the aim to increase States’ flexibility for the implementation of public international law. Finally, proposals to reform the existing system can be developed.

Dissertation
Intellectual Property and Competition Law

Confluence of International Investment Law and Patent Law and its Consequent Effects on Pharmaceutical Innovation

Ivan Stepanov

 
 

III.4 The interaction of jurisdictions

Multi-jurisdictional constellations are becoming increasingly important in intellectual property law and competition law. However, the traditional interaction through national provisions on conflict of laws and on international procedural law can provide only partially satisfactory solutions. Instruments such as the development of model provisions (e.g. the CLIP Principles) and of atypical rules on conflict of laws (e.g. the country of origin principle) as well as international exchange on rules and harmonisation of substantive law may help overcome the weaknesses of the traditional approach. Specific methods of resolution are needed with regard to the interaction of States with foreign market players and members of civil society. Furthermore, interaction in form of mutual influence and content-related exchange, which should ideally create a common basis of evaluation for the adoption and application of rules within the interacting jurisdictions is also conceivable.


Multi-jurisdictional constellations are becoming increasingly important for intellectual property and competition law, not least due to the IPR and competition strategies of globally active companies. The interactions of different legal systems triggered by such constellations can vary greatly. Of traditional importance is the, to a certain extent, unilaterally controlled interaction influenced by the individual national conflict of laws rules and international procedural law. However, concerning IP law in particular, this mechanism can provide only partially satisfactory solutions. Firstly, international coherence – i.e. the application of the same legal rules irrespective of which of the involved jurisdictions decides upon the applicable law – presupposes a homogeneity of the rules on conflict of laws which often does not exist. Secondly, the almost unresolvable tension between the application of the law of the country of protection (locus protectionis), which is currently partially considered as mandatory, and the need to apply consistent (transaction) rules to multi-jurisdictional IP portfolios leads to suboptimal solutions.


Development of model provisions for the coordination of international private and procedural law systems (such as the CLIP Principles) as well as international exchange on rules (e.g. in the International Competition Network) are, among others, two instruments able to help overcome these weaknesses of the traditional approach. Further conceivable instruments are atypical rules on conflict of laws (e.g. the country of origin/country of broadcasting principle) and the establishment of specific, agreement-based dispute resolution mechanisms. Frequently, constellations of problems not easily solvable through international private law can best be addressed by harmonising substantive law. Particularly challenging are solutions not designating a single applicable law, but enabling – at the substantive law level – the balancing among the possibly applicable legal systems, in line with the phenomenon of legal pluralism as known in legal anthropology.


The interaction of legal systems does not only include horizontal interaction of legal rules and public authorities when solving concrete or typical factual constellations. On one hand, the discussion on investment dispute settlement in the framework of free trade agreements shows that the interaction of States with foreign market players and members of civil society adds a vertical dimension, which requires specific methods of resolution. On the other hand, interaction can also be in the form of mutual influence and of content-related exchange, which should ideally create a common evaluation basis for the adoption and application of rules within the respective interacting jurisdictions or regulatory areas. In this respect, a number of questions arise, for example, as to the evaluation and compensation mechanisms present in one of the jurisdictions (in the respective regulatory area) and how these are received by the other jurisdiction.

Dissertation
Intellectual Property and Competition Law

Das Kollisionsrecht der kollektiven Rechtewahrnehmung

Moritz Sutterer