Innovation, competition law and IP rights

Tutor

Professor Herbert Hovenkamp,
University of Iowa School of Law and Fellow of the American Academy of Arts and Sciences
Visiting Professor, UCL

About the course

The course will explore the interaction between competition law and intellectual property rights. In the modern knowledge economy undertakings develop a number of strategies to expand their IP rights portfolio and achieve competitive advantages by employing their IP rights in order to exclude competitors or raise their costs, and charge higher prices to consumers. Competition law and IP law disputes are interconnected, as recent litigation in the pharmaceutical sector and the recent patent wars in the IT sector illustrate.

The course will analyze the value of competition law in addressing a variety of practices in innovation-intensive markets, including interconnection in networks, duties to deal, the licensing and distribution of IP rights (standard setting organizations, patent pools), tying, patent assertions by non-practising entities, pay-for-delay (“reverse”) settlements, and the nature of FRAND obligations for standards essential patents (SEPs), as well as injunctive remedies and computation of FRAND royalties, drawing from examples mostly from US law.

The course will also consider the uses and limitations of competition law and policy as a vehicle for promoting innovation and will examine realistic reforms that can be undertaken in IP law and competition law in order to achieve this objective.The course will aim to examine the interaction between competition law and IP law in various sectors of the economy and the practical implications of that interaction for a number of commercial practices.

The course will primarily examine the US systems for competition law and intellectual property rights.

Accreditation

The course is accredited with 12 CPD hours by the Solicitors Regulation Authority and the Bar Standards Board. It also constitutes relevant CPD for IPReg.

Course outline

Wednesday 10 June
(AM): Competition Policy, The Patent System, and Unreasonable IP Exclusions
(including anticompetitive abuses of the patent system, refusal to license, restraints on innovation, nonuse, patent aggregators and other non-practicing entities; exclusion by innovation)
(PM): Reverse Payment Settlements, Tying, and “Misuse”
(including pay-for delay settlements, patent ties, interoperability, price discrimination)

Thursday 11 June
(AM): Innovation Policy and the Innovation Commons
(including patent pools and cross licensing, open source practices, price fixing and horizontal market restraints, joint ventures)
(PM): Standard Setting, Standards Essential Patents, and FRAND Licensing
(including standard setting and other forms of technology sharing, FRAND licensing obligations and remedies, including royalty determinations).

About the tutor

Professor Herbert Hovenkamp is the Ben and Dorothy Willie Chair at the University of Iowa School of Law since 1986. Professor Hovenkamp has taught Antitrust, Antitrust & Economics, Law in American History, Torts, IP Survey, Introduction to Intellectual Property, and Real Property. He is a fellow of the American Academy of Arts and Sciences. He has been the Rockefeller Foundation Fellow, Harvard Law School; Fellow of the American Council of Learned Societies, Harvard Law School; Faculty Scholar, University of Iowa; Presidential Lecturer, University of Iowa; and has been the recipient of the University of Iowa Collegiate Teaching Award.

In 2008 Professor Hovenkamp received the John Sherman Award from the Antitrust Division of the Department of Justice. The award is presented approximately once every three years to “a person or persons for their outstanding achievement in antitrust law, contributing to the protection of American consumers and to the preservation of economic liberty.”

Professor Hovenkamp’s publications include some 100 articles and approximately 50 essays and book reviews, as well as a dozen books. Of these, Enterprise and American Law, 1800-1860 (1991) received the Littleton-Griswold Prize of the American Historical Association; and Science and Religion in America: 1800-1860 (1978) received the Choice Award. He is the senior surviving author of Antitrust Law (formerly with Phillip Areeda & Donald Turner), currently 22 volumes and the co-author of the two volumes treatise IP and Antitrust: An Analysis of Antitrust Principles Applied to Intellectual Property Law (with Mark D. Janis, Mark A. Lemley and Christopher R. Leslie).

His most recent books are Creation Without Restraint: Promoting Liberty and Rivalry in Innovation (with Christina Bohannan, 2012), and The Making of Competition Policy: Legal and Economic Sources (with Daniel A. Crane, 2013). He has forthcoming The Opening of American Law: Neoclassical Legal Thought, 1870-1970 (2014).