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TRIPs框架下欧盟与美国知识产权许可的反垄断审查比较研究:最新的进展

赵勇

  This article examines and compares the differing treatment of Intellectual Property licensing antitrust review under United States(US) antitrust law and European Union(EU) competition law,with the focus on the recent developments,especially on the cases including Philips,Qualcomm, Microsoft and Rambus,on both sides of the Atlantic.While in the US antitrust investigations of IP licensing are assessed under the Rule of Reason,in the EU they often are considered illegal per se,unless exempt under the EU Technology Transfer Regulation(TTBER) or by an express decision of the Commission addressed to the parties to the licensing agreement.It is generally agreed that there is an inherent tension between IP law and competition law.While both laws have similar policy objectives of encouraging technical development and consumer welfare,they approach these objectives differently. In sum,IP law promotes innovation by allowing restrictions on the sale of new technologies while competition law promotes innovation by prohibiting and preventing market restrictions.EU and US regulators both address this tension when confronted with competition problems caused by the use and abuse of IP rights.While antitrust authorities in both jurisdictions often resolve this tension in a similar way,recent case law suggests that the EU tends to favor the enforcement of antitrust laws whereas the United States leans towards protecting IP rights.……   
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