A Study of Competition Law and Intellectual Property in the EU: Comparative Perspectives in Licensing Agreements

Although competition or antitrust laws in different jurisdictions vary in enforcement, they have an unambiguous factor in common. That is the control on the oppressive use of market power. Therefore, implementation of competition law means challenging the firms that possess market power or exercise a similar power through agreements. Powers by means of intellectual property rights (IPRs) are no exception. It is true that there has been a never-ending conflicting opinion which has persistently claimed antitrust challenges for protecting the process of innovation by a vigorous competition. The intersection of IPRs and antitrust has, therefore, brought attention to scholars. One of the main objectives of competition law is to improve competition in the market, by means of preventing acts of abuse of market dominance or anti-competitive agreements. On the contrary, the IPRs allow firms to stimulate invention through permitting IP owners to exploit their market power. This seems that there is some conflict between these two areas. However, they are understood as in harmony since both eventually aim at achieving the goal for social welfare or efficiency. For this complex reason, most countries that legislate competition law also provide exemption regulations or guidelines for approving benign technology licensing. This article studies various legal techniques in the EU, the US, and Korea, illustrating the convergence through establishing the regulations and guidelines. It is somewhat difficult to decide whether positive outcome from a certain licensing agreement can offset anti-competitive one. However, a study of comparative law can offer a significant and diverse answers for the problem. Therefore, this article aims to provide a better solution for the existing problems in antitrust provisions on IPRs. This article explains the substantive law of EU competition law, including the unique block exemption provision on technology transfer, and compares it with reference to the current provisions on IPRs in the US and Korea. Then, it discusses the benefits from learning the EU block exemption regulation for its legal certainty outcomes. The provisions of the EU have proved their positive outcomes such as ensuring legal certainty through market share threshold guidance with hard-core prohibition. The Korean competition authorities can learn much from these legal techniques.