Competition law liability for obtaining, maintaining, and asserting intellectual property rights subsequently declared invalid or not infringed

Abstract

The aim of the thesis is to provide a theory of the extent of competition law liability applicable to conduct related to patents that are later found to be invalid or non-infringed, and to clarify the legal doctrine. Over more than a century, the IP-Competition Interface has both expanded and fractured, leaving most general accounts without substantial explanatory force. In particular, theory and positive law have thus far neglected to account systematically for the consequences of invalidity and non-infringement of intellectual property rights in IP law, private law, and competition law. The thesis approaches this issue from the doctrinal perspectives of English law and EU competition law, through a law and economics lens, and incorporates comparative elements from US antitrust law. The principles applicable to the conflict between valid and infringed intellectual property rights and competition law can be effectively distinguished from cases involving invalid or non-infringed intellectual property rights. Invalid and non-infringed intellectual property rights harm the competitive process. I argue that liability for conduct related to such rights is consistent with first principles and previous theories of the IP-Competition Interface and does not significantly chill legitimate innovation competition. Specifically, I clarify liability in four scenarios: obtaining, maintaining, and asserting invalid patents, and asserting non-infringed patents. I also consider liability in the contexts of licensing and patent theft. Competition law is well placed to remedy the harms arising from invalid and non-infringed intellectual property rights. IP rules addressing the issue are insufficient and institutionally unsuitable; private law doctrine has failed to account for the invalidation of IP rights ex tunc, though arguably for sound prudential reasons. In competition law, liability is strongly dependent on the concept of competition on the merits and therefore on an undertaking’s knowledge as to the invalidity or non-infringement of the patent. Public and private enforcement of competition law in this context discourages bad faith behaviour by patentees and compensates victims of such behaviour.