[A2k] EU Discussion Papaer on Abuse of Dominanace - IP Refusal to License

[James Love]

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Begin forwarded message:

From: "Paul Jones" <pjones@jonesco-law.ca>
Date: May 24, 2006 9:51:34 AM EDT
To: <AT-IP@mail.abanet.org>
Subject: EU Discussion Papaer on Abuse of Dominanace - IP Refusal to
License

The decision of the European Court of Justice in 2004 in the IMS case
suggested that a refusal to license by the holder of an IP right
would not be justified where it would prevent the emergence of a new
product, among other things. The EU Discussion paper dealt with that
test, and in a recent paper four European professors criticize the
treatment in the Discussion Paper as lacking clarity. One of the
concerns is that =E2=80=9Cnovelty is a vague term to which the Commission
fails to provide a clear meaning for the purpose of applying Article
82.=E2=80=9D Another concern is that the treatment in the Discussion Paper
weakens the test.



Paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3D894466



Blog with link to Power Point: http://www.professorgeradin.blogs.com/



The term =E2=80=9Cnovelty=E2=80=9D is a key term in patent law and is used =
to
determine what is patentable, i.e. eligible for a grant of a
=E2=80=9Cmonopoly.=E2=80=9D But as a Wall Street Journal editorial earlier =
this
year pointed out, over the years the advocates (they specifically,
and perhaps unfairly, referred only to lawyers) of patents have
considerably broadened the concept. If the EU were to borrow the
patent law concept of =E2=80=9Cnovelty=E2=80=9D to determine when a refusal=
 of a
license is unjustified, it would be ironic, wouldn=E2=80=99t it? The IP
rights would be narrowed by the efforts of their advocates to expand
them.



Regards



Paul Jones   =E9=92=9F =E4=BF=9D =E7=A6=84   =D0=9F=D0=BE=D0=BB  =D0=94=D0=
=B6=D0=BE=D1=83=D0=BD=D1=81
Barrister , Solicitor & Trade-mark Agent



Jones & Co.
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---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040

"If everyone thinks the same: No one thinks."  Bill Walton