Patent right do not confer monopoly power, despite assertions to the contrary

The term “monopoly” used in competition law stands miles away from the meaning of the word used in the context of IPRs. The assertions made by those who claim that patents equal monopolies are misguided. They are the joint result of historical ignorance and terminological confusion. Moreover, the patent=monopoly theorem also possibly serves a hidden bureaucratic agenda, that of limiting patent protection through the backdoor, by using ex post antitrust remedies to alter the protective – and innovation-incentivising – patent statutes adopted ex ante by elected democratic organs. Of course, this does not mean that there is no space for antitrust enforcement in markets exhibiting patented goods/technologies. For instance, some “strategic” patenting practices are increasingly scrutinized, possibly for good reason. Those strategies come under exotic labels, such as “evergreening”, “patent privateering actions”, “trolls”, “thickets”.56 As the Vice-President of the European Commission recently said: “a healthy system for the protection of intellectual property creates incentives for researchers and inventors granting them exclusive rights – within certain limits – for the commercial exploitation of their findings. But the system can be abused, which can be particularly harmful for the economy. This is why we want to prevent the trend we can observe in certain industries toward the strategic use of patents as a means to block competition”. 57 The fact that strategic patent practices exist however does not imply that the entire patent system is bad, and that its core incentivisation mechanism is broken. Competition is very valuable, but innovation is probably equally, if not more, valuable. There is abundant evidence that in certain sectors, absence of IP protection will hamper innovation, whilst the presence of IP protection will not generally lead to a monopoly. That should normally be sufficiently attractive a deal to defend IP protection. No one will deny that IP rights bring costs with them. But it is not a sound policy to do away with IP rights or at least regulate even more their use because of these potential negative effects. Courts and regulators must avoid throwing out the baby with the bathwater.