Intellectual property rights and market definitions under scrutiny—is the commission’s new notice innovative enough?
Intellectual property rights and market definitions under scrutiny—is the commission’s new notice innovative enough?
This paper analyses the 2024 Commission Notice on the Relevant Market Definition and recent case law to review the European Commission’s approach to identifying the relevant market when IP rights and innovation are present. The analysis undertaken is with reference to the 2014 TTBER, the new R&D Block Exemption Regulation, the 2017 US IP Licensing Guidelines and the new 2023 US Merger Guidelines. It identifies that the Commission has not ensured alignment between its regulations and guidelines playing hopscotch with legal certainty. In terms of the broader contribution, this paper reflects upon the development of the interface between competition law and IP rights and the central part innovation now plays in EU competition law enforcement. It marks a positive move away from the Schumpeterian theories of innovation needing monopoly power towards Arrow’s idea that competition can be a key influencer of innovation. This shift in attitude comes alongside the recent regime change in US antitrust enforcement and the Commission’s own adoption of the DMA and DSA to regulate the digital economy, but for IP rights the ex-ante approach and reliance of ‘innovation spaces’ in defining the relevant market risks overstepping the competition law’s role as second-tier regulator of IP rights.
Competition policy, Competition law, antitrust law, market definition, technological market, digital markets, Innovation, Intellectual property rights, interface, innovation space, product markets
Schmidt, Hedvig
79ee57ca-7da9-43ea-93bc-2c3ad29e714a
Schmidt, Hedvig
79ee57ca-7da9-43ea-93bc-2c3ad29e714a
Schmidt, Hedvig
(2025)
Intellectual property rights and market definitions under scrutiny—is the commission’s new notice innovative enough?
Journal of Antitrust Enforcement, [jnaf014].
(doi:10.1093/jaenfo/jnaf014).
Abstract
This paper analyses the 2024 Commission Notice on the Relevant Market Definition and recent case law to review the European Commission’s approach to identifying the relevant market when IP rights and innovation are present. The analysis undertaken is with reference to the 2014 TTBER, the new R&D Block Exemption Regulation, the 2017 US IP Licensing Guidelines and the new 2023 US Merger Guidelines. It identifies that the Commission has not ensured alignment between its regulations and guidelines playing hopscotch with legal certainty. In terms of the broader contribution, this paper reflects upon the development of the interface between competition law and IP rights and the central part innovation now plays in EU competition law enforcement. It marks a positive move away from the Schumpeterian theories of innovation needing monopoly power towards Arrow’s idea that competition can be a key influencer of innovation. This shift in attitude comes alongside the recent regime change in US antitrust enforcement and the Commission’s own adoption of the DMA and DSA to regulate the digital economy, but for IP rights the ex-ante approach and reliance of ‘innovation spaces’ in defining the relevant market risks overstepping the competition law’s role as second-tier regulator of IP rights.
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Schmidt Intellectual property rights and market definition under scrutiny JAE 2025
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e-pub ahead of print date: 3 April 2025
Keywords:
Competition policy, Competition law, antitrust law, market definition, technological market, digital markets, Innovation, Intellectual property rights, interface, innovation space, product markets
Identifiers
Local EPrints ID: 500547
URI: http://eprints.soton.ac.uk/id/eprint/500547
ISSN: 2050-0688
PURE UUID: c2e62051-d9ac-4f2f-87db-7a84cf684da2
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Date deposited: 06 May 2025 16:34
Last modified: 07 May 2025 01:40
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