L’assalto fallito? Riflessioni sulla proposta rivisitazione della disciplina dell’abuso di posizione dominante in chiave “più economica” e sulla Comunicazione della Commissione riguardante l’applicazione dell’art. 102 del Trattato CE alle pratiche escludenti

In Europa, l’affermazione del cd economic approach alla interpretazione ed applicazione del diritto antitrust cominciò, come noto, con la distinzione fra accordi orizzontali e verticali, per proseguire con il nuovo regolamento concentrazioni che codificò il criterio dell’efficienza pro-consumatori quale fattore ‘bilanciante’ (countervailing factor) atto a giustificare la concentrazione del potere di mercato in capo a poche imprese. Recentemente, poi, sulla scia della c.d. modernizzazione, quell’indirizzo si è ulteriormente riflesso in recenti (2008) Linee Guida della Commissione espressive di un sostanziale favor per le concentrazioni non-orizzontali. Questa prospettiva metodica, dalle chiara ascendenza dalla Scuola di Chicago (ma il primo debito culturale è con Richard Posner ), ha affermato il primato della rule of reason attraverso un più penetrante ruolo dell’analisi economica nella interpretazione e nell’applicazione del diritto antitrust: pegno per valutazioni insieme più realistiche e più approfonditamente motivate. Tuttavia, gli ulteriori sviluppi che taluni ambienti professionali ed accademici propongono, prospettando come criterio di qualificazione principe l’efficienza specificamente pro-consumer della pratica o dell’operazione (qui in sostanziale linea con l’indirizzo scientifico post-Chicago: Salop et al.), hanno suscitato diffuse perplessità, echeggiate anche nel recentissimo dibattito riguardante la fattispecie dell’abuso di posizione dominante, in particolare dei comportamenti escludenti, e la suggerita rivisitazione della detta dottrina in chiave ’più economica’

“On the intersection of IPRs and Competition Law with regard to information technology markets”

The problem of the so-called ‘intersection’ between intellectual property and competition law – which will be dealt with mainly from the European perspective – is rooted in the apparent antinomy of the respective (direct) goals: fostering innovation through the attribution of exclusive/excluding rights on one hand, and preserving freedom of access to the market on the other. However, IPRs do not per se confer monopolies in economic sense, since they should typically allow the entrance of substitute products onto the market. Only in some circumstances is it possible for the market power enjoyed by IPR-holders to grow into a true foreclosure of third party competition, leading to a de facto monopolization. We argue that in such cases, not simply competition is hampered but also the dynamic process of innovation is at stake. Consequently, in such cases antitrust remedies should ‘march in’ to preserve the ultimate goals of both branches of law. In particular, focusing on the IT market(s), this paper will discuss whether and to what extent a right of access (typically in the form of a non-voluntary licence) to innovative ‘creations’ of information technologies protected by copyright or patents should be granted to third parties if the exercise of the excluding powers typically associated with IPRs would risk preventing those parties from operating as competitors on a related (downstream) market or even – more controversially – on the same market

On the intersection of IPRs and Competition Law with regard to information technology markets

The problem of the so-called 'intersection' between intellectual property and competition law - which will be dealt with mainly from the European perspective - is rooted in the apparent antinomy of the respective (direct) goals: fostering innovation through the attribution of exclusive/excluding rights on one hand, and preserving freedom of access to the market on the other. However, IPRs do not per se confer monopolies in economic sense, since they should typically allow the entrance of substitute products onto the market. Only in some circumstances is it possible for the market power enjoyed by IPR-holders to grow into a true foreclosure of third party competition, leading to a de facto monopolization. We argue that in such cases, not simply competition is hampered but also the dynamic process of innovation is at stake. Consequently, in such cases antitrust remedies should 'march in' to preserve the ultimate goals of both branches of law. In particular, focusing on the IT market(s), this paper will discuss whether and to what extent a right of access (typically in the form of a non-voluntary licence) to innovative 'creations' of information technologies protected by copyright or patents should be granted to third parties if the exercise of the excluding powers typically associated with IPRs would risk preventing those parties from operating as competitors on a related (downstream) market or even - more controversially - on the same market

“Patent and copyright paradigms vis-à-vis derivative innovation: the case of computer programs”,

Since the enactment of Directive 91/250 EEC, software developers – especially SMEs – have adopted copyright as the primary tool of protection for computer programs, which cannot be patented “as such” according to the conjunct reading of Art. 52(2)(c) with 52(3) of the European Patent Convention. However, patent protection of software-related inventions has been regularly granted by the European Patent Office and several national courts, recently emerging as the preferred alternative for an increasing number of program developers and software houses. In 2002, in order to harmonise at Community level the application of patent law by national courts to such inventions, the Commission drafted a Proposal for a Directive on the patentability of computer-related inventions. However, within the Proposal’s framework, patent protection is not purported to supplant copyright, but rather to coexist (peacefully?) with it. This paper aims at analysing, firstly, how patent and copyright law address the case of derivative innovation in the software market and, secondly, the likely consequences that the coexistence of the two paradigms would have on such inventions

Dynamic competition in software development. How copyrights and patents, and their overlapping, impact on derivative innovation.

The debate on which intellectual property (IP) paradigm would be best suited to protect software innovation is probably among the longest in the history of IP law. It began in the late sixties in the United States, spurred by the vertical disintegration process of IBM PCs and seemed to reach its completion in 1991, when Europe followed the North American blueprint by adopting a Directive promoting copyright law as a tool of protection. It is well known, however, that this was not the end of the story. Later, both North American Courts and the Technical Boards of the European Patent Office turned to patents as a valuable and more incisive instrument of protection. Since then the two forms of protection actually overlap in the absence of legal regulation of their coexistence both in the United States and in Europe. In the first part of this paper, the authors explore the legal evolution of the software regime, focusing on the reasons that have led legislators to adopt copyright as a tool of protection instead of patents, as well as those that afterwards led courts and the Technical Boards to ‘rediscover’ patent protection. The paper then examines the impact of the two paradigms of protection, and their overlap, on software innovation (which typically is incremental) and related competitive dynamics. Finally, the authors tentatively suggest normative solutions aimed at achieving an overall more innovation- and competitionenhancing regime of software protection