Home > Research > Research Projects > Enforcement of
Intellectual Property and Competition Law in the Pharmaceutical,
Entertainment, Engineering and Information Technology
Industries
Enforcement of Intellectual Property and Competition Law in the
Pharmaceutical, Entertainment, Engineering and Information
Technology Industries
Intellectual property rights have as their foremost goal the
fostering of dynamic competition and innovation. Quite obviously,
however, those goals can only be achieved if the rights granted are
calibrated in an adequate manner, as regards both the scope of
protection and the complexity of their regulatory framework. It is
primarily a task for the legislature to ensure that the course is
set right with regard to those parameters. However, the resulting
rules remain to be dead letter, too abstract to grasp in their full
potential to impact the behaviour of market players, as long as
they are not enforced in practice. Whether the tailoring of an
exclusive position, or the consequences flowing from its violation,
are proportionate and meaningful in view of the underlying aims,
will become apparent only when courts and authorities turn the law
in the books into living reality. Seen from this angle, sanctions
and enforcement, and how they are handled in practice, may form a
crucial tool for detection of deficiencies and imbalances within
the entire IP system. It is frequently emphasized in this context
that if IP infringements are unchallenged in practice, or if the
harm caused by them regularly remains under-compensated, the
objectives pursued by substantive legislation cannot be met. On the
other hand, it is equally important that distortions may also
result from the other side if claims are raised and eventually
enforced that hinder competitors from engaging in lawful practices,
the balance reflected in the substantive norms is equally
jeopardized. In addition to purely technical concerns e.g. how to
detect infringements and identify those who commit them the issue
concerns a number of legal and economic matters that are closely
intertwined. There is an obvious link between the harm caused by
violations of IP rights to national economy and individual
enterprises and the urge to introduce, or reinforce, sanctions and
procedures to secure compliance with existing rules. Figures are
regularly cited in the press as well as in legislative documents in
order to illustrate the enormous losses incurred each year through
illegal copies. However, those figures are seldom seriously tested.
Furthermore, there seem to be no figures available of the economic
harm caused by claims launched by over-assertive right-holders
against their competitors, who may have to yield simply because
they cannot afford to fight the matter through in court, or because
the legal uncertainties are too high. Is it possible at all to
arrive at reliable estimations for both cases? How do the
respective sanctions imposed those against infringement as well as
the consequences eventually facing a person who has raised
unfounded claims influence the reaction of those involved? Are they
appropriately tailored so as to induce the best possible degree of
law-abiding conduct on both sides? Another important aspect
concerns the question whether and when the validity of registered
rights is challenged that might pose a threat to ones own business.
Is it more sensible from a legal and economic point of view to wait
for an eventual infringement claim, or is it preferable to charge
already in an earlier stage? What are the factors impacting that
choice? It is obvious already from the few examples given here that
the response cannot be the same for all situations, and for all
kinds of rights. A differentiated approach needs to be applied,
preferably distinguishing between specific markets, analysing their
economic structure and the sector-specific legal problems raised by
infringement and enforcement of rights. For example, markets such
as the following might provide a basis for such an endeavour:
pharmaceuticals, entertainment, engineering and information
technology.
Last change: 27.01.2012
Max Planck Institute for Intellectual Property and Competition
Law , 2012 >Imprint
