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Anderman, Steven --- "Microsoft v Commission and the Interoperability Issue" [2010] ELECD 479; in Rubini, Luca (ed), "Microsoft on Trial" (Edward Elgar Publishing, 2010)

Book Title: Microsoft on Trial

Editor(s): Rubini, Luca

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848442443

Section: Chapter 7

Section Title: Microsoft v Commission and the Interoperability Issue

Author(s): Anderman, Steven

Number of pages: 16

Extract:

7. Microsoft v Commission and the
interoperability issue
Steven Anderman

1. INTRODUCTION

The judgment of the Court of First Instance (CFI) in Microsoft v
Commission1 offers the latest judicial pronouncement on the relationship
between competition law and the exercise of intellectual property rights
(IPRs). The CFI continues to stress that only in `exceptional' circum-
stances will an IPR owner be subject to a competition law remedy of
compulsory licensing because a refusal to license infringes Article 82 EC.
It maintains that in `normal' cases the owner of an IPR is entitled to refuse
to license because exclusivity is the very substance of the intellectual prop-
erty right. However, the case has undoubtedly modified and extended the
test of exceptional circumstances. Prior to the Microsoft case, the test of
`exceptional circumstances' tended to be defined by the criteria established
by the Court of Justice in its Magill2 and IMS Health3 judgments. After
the Microsoft case, it appears that the test of exceptional circumstances
may have been widened to include another parameter which extends the
test under Article 82(b) EC to certain forms of conduct limiting the tech-
nical development of secondary markets. This means that even where an
IPR is exploited in a manner that is lawful under the intellectual property
(IP) laws, the practice adopted to exploit the IP may, in certain circum-
stances, be found to be unlawful under the competition rules. It also
means that the basis upon which competition law finds a refusal to share
IPRs ...