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Intellectual Property and Competition Law

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Exclusive Licensing

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Exclusive licenses grant a single licensee the rights to use a patent, trademark, or other IP. Competition law scrutinizes these for potential antitrust issues, especially if they hinder market entry or innovation.

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Essential Facilities Doctrine

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This doctrine prevents companies from denying access to a facility crucial for competition, which could include IP-related assets. It ensures competitive markets, which might be at odds with an IP holder's desire to monopolize a market.

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Market Share and Monopoly

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The possession of IP rights can lead to a significant market share or even monopoly. Competition law monitors these situations to prevent abuse of dominance that can hurt consumers and stifle competition.

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Predatory Pricing

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Predatory pricing involves setting prices very low to drive competitors out of the market. Companies holding IP rights might do this to assert dominance, but it can conflict with competition law designed to prevent anti-competitive practices.

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Technology Transfer Agreements

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These involve the licensing of patents, know-how, or trade secrets. Competition law ensures that such agreements do not lead to restricted competition or the formation of cartels.

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Parallel Imports

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Parallel imports occur when non-counterfeit products are imported without the permission of the IP holder. Competition law may support these imports for consumer benefit, despite them potentially undermining IP exclusivity.

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IP Misuse

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IP misuse refers to the exploitation of IP rights in a manner contrary to statutory law or public policy. Competition law plays a role in curbing such misuse to prevent anti-competitive practices.

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Innovation and Antitrust Concerns

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IP law encourages innovation by granting temporary monopolies. However, competition law must balance this with the need to prevent prolonged anticompetitive behavior that could stifle further innovation and harm consumer interests.

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Price Discrimination

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Producers with IP rights might charge different prices to different consumers. While sometimes legal, competition law may see this as anti-competitive if it leads to market distortion or unfair advantages.

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Refusal to License

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IP owners have the right to decide whether or not to license their assets. Competition law may intervene when a refusal to license harms competition, especially in cases where the IP is a standard-essential patent.

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Patent Pools

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Patent pools are arrangements where two or more patent owners agree to license one or more of their patents to one another or to third parties. In competition law, these can raise concerns of collusion or anti-competitive price-fixing.

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Tying Arrangements

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Tying happens when a company with a strong market position in one product forces consumers to buy a secondary product. This can be problematic when the products are protected by IP rights, potentially breaching competition law by restricting market freedom.

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Resale Price Maintenance

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IP holders may attempt to control the resale price of their protected goods. Competition law can find such practices unlawful if they lead to price fixing and reduced competition, despite the presence of IP rights.

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Exhaustion Doctrine

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Once an IP-protected product is sold by the IP owner or with their consent, their control over the product's distribution may cease. This limits IP rights to facilitate competition, a principle supported by competition law.

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Standards and Patents

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Standards require that technologies follow certain norms, and patents can protect these technologies. Competition law is concerned when patent holders abuse their position, potentially thwarting competition through excessive royalties or restrictions.

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Pay-for-Delay Agreements

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These agreements involve brand-name drug manufacturers paying generic manufacturers to delay entering the market. While IP law protects drug patents, such agreements can violate competition law by restricting market access and competition.

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Cross-Licensing Agreements

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In cross-licensing, companies exchange licenses to use each other's patents. While this can facilitate innovation, competition law examines these agreements for potential anti-competitive practices like market division.

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Reverse Payment Patents Settlements

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This is when a patent holder pays a potential competitor not to market a generic version of a product. Competition authorities view such settlements with suspicion as they may constitute an anticompetitive practice.

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Market Allocation

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IP rights can be employed to divide markets between companies, which may agree not to compete in certain areas. Such market allocation is generally contrary to the principles of competition law.

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Merger Control

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When companies holding substantial IP rights merge, the combined entity's market power might raise competition law concerns. Regulators analyze such mergers to prevent an undue concentration of IP that hinders competition.

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