Competition Law as an Instrument of IP Regulation? The Case of Strategic Patent Filings

As many have recently observed, competition law enforcement seems to be somehow merging into a form of market regulation. This is surely true as far as innovation is concerned. Indeed, competition law has progressively acquired the role of an IP ‘watchdog’, with the mission of curtailing the scope and use of IP rights in cases where their exploitation seems to worsen rather than promote innovation. Indeed, significant steps have been taken in certain areas of the intersection of competition policy and IPRs, such as that relating to the application of Article 101 of the Treaty, where a block-exemption regulation has been adopted. In the other two main areas of competition law, however, mergers and unilateral practices, no legislative instruments have been adopted, leaving the Commission and the Courts considerable room to manouvre in developing their own case-law. This chapter argues that the shaping of a common core of guiding principles concerning the intersection of competition law and intellectual property rights in the area of unilateral practices has become a necessity considering that not only the number of abusive practices involving the use of IPRs has recently increased, but also that new kinds of practices have emerged, posing increasingly complex issues to analyse. Among such new practices, this work will focus on the conduct of so-called strategic patent filings, pursued by dominant firms for the purpose of keeping competitors offut of the market. This conduct has become extremely frequent in the pharmaceutical sector, and its assessment by competition authorities is particularly complex because, on the one hand, the act of strategic patenting pertains to behavior which is permitted by patent law, hence perfectly legal according to this branch of the legal system. On the other hand, it does not imply alleged or actual (ab)use of the IPRs, as it typically involves the preliminary stage of patent filing (i.e. the acts aimed at obtaining the protection)