AT-IP REPORT
February 13, 2003
Electronic Newsletter of the Intellectual Property Committee
Section of Antitrust Law
American Bar Association
We are pleased to
bring you “The Use of Article 82 to Compel a Compulsory Patent License: Intel
v. Via Technologies Takes Magill/IMS One Step Further” by Frank
Fine. Mr. Fine is a Partner with DLA
Brussels, was lead counsel to NDC in the Brussels proceedings described in the
article and presently represents NDC in the appeal by IMS to the Court of First
Instance in that NDC Health/IMS Health matter.
On December 20, 2002,
the English Court of Appeal reversed the summary dismissal of certain defenses
asserted by Via Technologies under Articles 81 and 82 of the Treaty
Establishing the European Community (“EC Treaty”). The decision by the Vice Chancellor was joined by Lord Justice
Mummery and Lord Justice Tuckey and is available at
http://www.courtservice.gov.uk/judgmentsfiles/j1483/intel_v_via_technologies.htm.
After
noting that the “the ingredients of computer technology, patent infringement
and Articles 81 and 82 EC Treaty make a somewhat indigestible dish,” the Vice
Chancellor concludes by stating and then answering in the affirmative two
simple questions: “Are the defences under Articles 81 and 82 ones for which Via
has real prospects of success? Are
there other compelling reasons why these defences should only be disposed of at
a trial?” (para. 89)
Lord
Justice Mummery’s concurring opinion notes: “My provisional view at this stage
of the litigation is that the defence under Article 82 is stronger than that
under Article 81 and that there are serious difficulties in the way of either
of the competition defences eventually succeeding at trial. But it is too soon to have sufficient
confidence in the ultimate outcome to decide summarily that the defences have
no real prospect of success.” (para. 96)
In
the United States, of course, the legal standards of section 2 of the Sherman
Act may not coincide with those under Article 82 of the EC Treaty, but alleged
monopolists’ refusals to deal and conditional refusals to deal with respect to
exclusive intellectual property rights continue to be the subject of litigation
and debate. For a relatively current
point-counterpoint discussion of the topic under US law see articles by
Jonathan Gleklen and Jeffrey MacKie-Mason in the July 2002 edition of Antitrust
Source: http://www.abanet.org/antitrust/source/july.html
In
his recent speech before the American Intellectual Property Law Association,
Acting Assistant Attorney General for the Antitrust Division R. Hewitt Pate
noted continuing debate on the subject and commented that:
Even outside the intellectual property context, the
monopolist's general right unilaterally to refuse to deal is a fundamental and
well-recognized part of antitrust law.
Likewise, the right not to license is a fundamental aspect of patent
law. Using antitrust to permit
subjective inquiry into the intellectual property holder's motivations for
refusing to deal cuts at the very heart of the intellectual property right --
the right to exclude.
That
speech is available at: http://www.usdoj.gov/atr/public/speeches/200701.htm.
The
issue continues to be examined on both sides of the Atlantic Ocean.
This
article was edited with the assistance of John Martin and Christopher Forstner of Hunton and Williams.
Joseph Kattan provided some additional observations.
Anthony Chavez
Vice Chair-Electronic Communication
Intellectual Property Committee
J.Anthony.Chavez@ExxonMobil.com
Ed Biester
Co-Coordinator-Electronic Communication
egbiester@duanemorris.com
The Use of Article 82 to
Compel a Compulsory Patent License:
Intel v. Via Technologies Takes Magill/IMS One Step Further.
By Frank Fine*
Background
U.S. antitrust lawyers may have difficulty grasping the
peculiarities of the European Union's divisions between "federal" and
"Member State" authority, particularly as the EU is not a federal
government as such with the powers that one would normally associate with a
sovereign power. The current political
turmoil among Member States over "European" policy on Iraq
underscores the gap between the EU's aspirations to achieve genuine sovereign
powers and current reality. The
frictions between federal and state power within the EU are no more apparent
than on issues of property ownership.
Article 295 of the EC Treaty, which is also referred to as the Treaty
Establishing the European Community,[1]
states that the Treaty "shall in no way prejudice the rules in Member
States governing the system of property ownership."[2] This provision of the EC Treaty had the
effect of placing under the umbrella of "States' rights" not only the
national system of intellectual property protection, but also determinations of
specific IP ownership within said system.
However, the European Court of Justice held in its 1966 Consten and
Grundig judgment that Article 222 (now Article 295) of the EC Treaty does
“not exclude any influence whatever of Community law on the exercise of national property
rights.”[3] Indeed, as the Court recognized, the
exercise of national property rights may be counter to other Community
interests, such as Article 30 of the EC Treaty (free movement of goods), as
well as Article 82 of the of the EC Treaty.[4]
In 1968, the European Court of Justice in Parke, Davis
declared that the exercise of IP rights is not an unlimited right and can
itself be abusive: "Although a patent confers on its holder a special
protection at national level,” it does not follow that the exercise of patent rights would be entitled to protection if
“the use of the patent were to degenerate into an abuse of the abovementioned
protection.”[5]
These cases form the essential
background of the Magill case,[6]
which was decided by the European Court of Justice in 1995 over the rather
stunning issue of whether several UK broadcasters were entitled to exercise
their statutory copyrights in their daily program listings, effectively, to
prevent anyone, but here, Irish publisher Magill, from putting on the UK market
the kind of weekly, multi-channel TV guide which had been on the market for
years on the continent. Despite the
obvious consumer interest in breaking this bottleneck, the Court approached the
Article 295 issue in a circumspect manner, stating that in "exceptional
circumstances," Article 82 applied to the mere refusal to license an IP
right.[7]
Exceptional circumstances were found in
Magill, where the broadcasters' abusive conduct prevented the emergence
of "new" product on the market, although the significance of the
novelty introduced by Magill was itself downplayed by the Court.[8] Some legal commentators went so far as to
argue that the Magill Court required a finding of two markets, even
though there is nothing in Magill which suggested that the application
of Article 82 to an IP right required market leveraging. Indeed,
this view presupposed that the daily TV listings, which were routinely given
away to newspapers for reprinting, constituted the dominated market of the
broadcasters from which they were leveraging into a "secondary” market in
weekly TV magazines. In fact, there was
only one relevant market, and this was the market in weekly TV magazines.
The EC Courts subsequently confirmed in both Ladbroke[9]
and Bronner[10]
that a monopolist's prevented emergence of a new product was not necessary for
the assertion of Article 82 to compel access to an essential facility under
exceptional circumstances. What really
mattered was whether the IP holder, by refusing to license, was preventing
access to an essential facility. As the
Court of First Instance (“CFI”) stated in Ladbroke, which involved the
question of whether broadcasts of French horse races could be compulsorily
licensed pursuant to Article 82, it was sufficient for the applicant to show
that the exercise of copyright (by refusal to license) deprived the applicant
of a product or service that was “essential for the exercise of the activity in
question.”[11] The European Court of Justice in Bronner
added that the refusal to license (if not discriminatory) must be likely to
eliminate all competition on the relevant market.[12] There was no indication from Ladbroke
or Bronner that market leveraging was required.
Some legal commentators read Ladbroke and Bronner
as a judicial retreat from the precedent set in Magill, as neither the
CFI nor the European Court, respectively, found that the applicants for a
license had established an infringement of Article 82. However, the facts in Ladbroke and Bronner
were hardly supportive of an infringement of Article 82, even on a broad
reading of Magill. In Ladbroke,
it was clear to the CFI that broadcasts of French horse races were not
essential to the betting organization, Ladbroke, where bets were placed prior
to any broadcast of the race in question.
In Bronner, it was obvious to the European Court that Mr. Bronner
was a free rider--there were no technical, legal or financial barriers
preventing him from establishing his own home-delivery scheme. Unfortunately, the CFI's and European
Court's valuable interpretation of Magill was overlooked.[13]
NDC Health/IMS Health
Magill, Ladbroke, and Bronner paved the way for the
Commission's interim decision in NDC Health/IMS Health.[14] Whereas the EC Courts in Ladbroke and
Bronner were confronted with weak factual situations which did not
permit the application of their broad interpretation of Article 82, the
European Commission found a compelling situation: IMS claimed an exclusive
copyright in an industry standard, the 1860 brick structure,[15]
which was relied upon by German pharmaceutical manufacturers for the supply of
regional pharmaceutical sales reports, and refused to license the right to use
this brick structure, which was in database form, to its competitors, NDC and
AzyX. IMS was already in the relevant
market for regional sales reports, and NDC sought to compete in this very
market. The Commission, in summarizing
the case precedents noted above, confirmed that under Magill, the
application of Article 82 to a refusal to license, when access by competitors
was essential, did not require that the dominant firm prevent the emergence of
a new product, but rather, that its refusal of access was likely to eliminate
all competition on the relevant market.[16]
Nor was it necessary, in the Commission's view, for NDC to
prove that IMS was engaged in market leveraging.[17] It was sufficient that IMS impeded NDC from
competing on the one relevant market, that of regional sales reports.[18]
The IMS
decision – subject to its ultimate outcome on appeal and with the caveat per
footnote 14 that its result has been suspended pending appeal – has greatly
clarified the test, under Article 82, for obtaining a compulsory license. Although the decision confirms that
antitrust concerns may prevail over IP rights in extreme situations, the
Commission has yet to grant a compulsory license where the subject matter is
complex or sophisticated, or where the asserted IP right is pursuant to a
patent. However, Article 82 is
"directly applicable" in the national courts of the Member States, so
it was foreseeable that such a court would eventually take the Magill
doctrine one important step further.
Intel v. Via Technologies
On December
20, 2002, the English Court of Appeal reversed the summary dismissal of certain
"Euro defenses" in the Intel
Corporation/Via Technologies litigation. [19] While it was held that the validity of such
defenses will ultimately be determined at trial, this decision may assist
defendants in raising such defenses in intellectual property litigation.
The facts
Both Intel and
Via make central processing units and chipsets for use in personal
computers. As part of the factual
background, the decision notes that Intel is the “largest designer and maker of
x86 CPUs in the world, accounting for about 80% of sales for each year between
1996 and 2000 (both inclusive),” for “the years 1996 to 1998 (both inclusive)
its Chipsets accounted for about 100% of the market” and “[b]etween 1998 and
2000, its share of the world-wide market in Chipsets declined to about 75%”
while Via had 19% of the remaining 25%.[20]
By cross-license, Intel licensed Via the right to use Intel patented
technology to manufacture chips and Intel was granted a right to use certain
Via technology. Via was restricted to
using the Intel technology in non-Pentium IV products. In
September 2001, Intel brought two actions in the Patents Court, situated in the
English Chancery Division (part of the English High Court), alleging that Via
was infringing five of Intel's patents.
In its defense and counterclaim, Via denied the validity of each of the
patents relied on and denied that it had infringed any valid claim in any of
them. In addition, Via raised defenses
under Articles 81 and 82 of the EC Treaty and the corresponding provisions of
the UK Competition Act of 1998, i.e. that Intel's infringement claim was an
unlawful attempt to compel Via to enter into a licensing agreement, containing
cross-licenses for Via's technology an other restrictions, which was contrary
to Article 81(1) of the EC Treaty and Section 2(1) of the UK Competition Act of
1998, and Intel's refusal to grant a patent license on reasonable terms or at
all was an abuse of dominant position pursuant to Article 82 of the EC Treaty
and Section 18 of the Act.[21] Intel succeeded in obtaining summary judgment
for patent infringement against Via.
Via appealed.
The issues
Although
permission to appeal had only been granted in respect of one of the competition
issues, the issues argued before the English Court of Appeals
were as follows:
·
Whether (and
if so, when) the owner of an intellectual property right who is in a dominant
position for the purposes of Article 82 is obliged not to exercise that right
so as to exclude others from the market or a substantial part of the market.
·
Whether the
owner of an intellectual property right (whether dominant or not) may lawfully
exercise his right to license it on terms which either distort competition or
are wider than necessary to define the extent to which his exclusive right has
been surrendered.
·
Whether it is
a defense to an action for infringement of a patent that its enforcement would
enable the owner of the patent to act in breach of Articles 81 or 82.
The Court of Appeal's decision
The Court of Appeal reversed the judgment of Justice Lawrence Collins of
the Chancery Division, Patents Court, noting that cases involving Articles 81
and 82 often raised questions of mixed law and fact which were unsuitable for
summary determination.[22]
The Court of Appeal held that it was possible to defend a patent
infringement claim by contending that the enforcement of the patent would
enable the holder of the patent to act in breach of Articles 81 or 82.[23]
Secondly, it
held that Via had a prospect of success in two defense arguments, namely that
(i) Intel's refusal to grant a patent license on reasonable terms, or at all,
was an abuse of its dominant position under Article 82; and (ii) Intel's
infringement claim was an unlawful attempt to compel Via to enter into a
cross-license for Via technology and other restrictions contrary to Article
81(1).
As regards the
Article 82 defense, the Court of Appeal considered the decisions in Volvo v
Veng,[24] Magill,
Ladbroke, and Bronner.[25] Counsel for Intel had contended that these
cases showed “that there can only be exceptional circumstances within the
Magill test if all the conditions in either Magill or IMS are satisfied” and
that “the result of the refusal must be to exclude an entirely new product from
the market (Magill) or all competition to the patentee (IMS).”[26]
The Court of
Appeal rejected Intel's argument, stating firstly, that Magill and IMS
did not indicate all circumstances which might be deemed
"exceptional" for the purposes of determining the applicability of
Article 82 to the exercise of an IP right; and secondly, that as the President
of the Court of First Instance suggested in his interim order of October 26,
2001 in the IMS case,[27] a breach of
Article 82 was possible without the exclusion of a new product or all
competition.[28] The Court therefore held that in both the Chipset Action and the CPU
Action, Via pleaded facts “which may give rise to the abuse by the owner of an
intellectual property right of his dominant position contrary to Article 82.”[29]
Intel has not appealed to the House of Lords and the case will now
proceed to trial on the merits.
The implications
The judgment affirms the Commission's reading of the Magill and Bronner judgments as they
were interpreted in the IMS decision of July 2001. The Court of Appeal even suggested that the
Commission had interpreted Bronner
too narrowly in the IMS case when it held that all competition in
the relevant market had to be eliminated for there to be the "exceptional
circumstances" required to show an abuse of dominance. Instead, it may only be necessary for
competition to be excluded from the person requesting access to the facility
(i.e. the applicant for a compulsory license) as opposed to all of the
licensor's competitors.[30]
However, there is another interesting ramification of the Intel
judgment. It will be recalled that the
CFI President, in suspending the Commission's interim decision in the IMS
case, concluded, inter alia, that IMS had reasonable grounds for asserting that
Magill-Bronner were capable of an interpretation other than the
one advanced by the Commission. Consequently,
in his view, the Commission failed to establish, on legal grounds, a prima
facie case that IMS had committed an Article 82 infringement. This would not seem to square with the
conclusion of the English Court of Appeal that Via Technology posed a legally
viable defense on the basis of the European Commission's interpretation of Magill-Bronner.
The December 11, 2002 ruling of the District Court of Rotterdam in the De
Telegraaf case ("Dutch Magill"),[31]
in which the Commission's view of the EC Court precedents in IMS was
also affirmed, now seems to present a real schism between the CFI, on the one
hand, and the EC Commission and the UK and Dutch courts, on the other, as to
the application of Article 82 to the refusal to license intellectual property
rights. These differences should be
resolved by the European Court of Justice when it gives judgment on the
preliminary reference from the Frankfurt Regional Court in one of the NDC/IMS
copyright infringement cases pending in Germany.
In blessing the application of the essential
facilities doctrine to valuable intellectual property rights, whether in the
form of patents or copyright, the Court of Appeal has laid down the gauntlet to
the European Commission. If the
Commission is truly sincere in applying Article 82 to refusals to license
essential facility-IP rights in order to break IP-created or enhanced
monopolies, then it will need to show that owners of complex, sophisticated IP
rights will not, by virtue of their investment, invention or cunning be excluded
from the application of this enforcement policy.
Mr. Fine is a Partner, DLA Brussels, was lead counsel to NDC
in the Brussels proceedings described in the article and presently represents
NDC in the appeal by IMS to the Court of First Instance. He can be contacted by email at Frank.Fine@dla.com
or at 32-2-629-6973.
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AT-IP
Report is the electronic Newsletter of the Intellectual Property Committee of
the American Bar Association, Section of Antitrust Law. The views expressed in the AT-IP Report are
the authors' only and not necessarily those of the ABA, the Section of
Antitrust Law or the Intellectual Property Committee. If you wish to comment on the content of this Electronic Newsletter,
please write to the ABA, Section of Antitrust Law, Attention: Intellectual
Property Committee, 750 North Lake Shore Drive, Chicago, Illinois 60611. Copyright 2003 American Bar Association.
*Partner, DLA Brussels. The author was lead counsel to NDC in the
Brussels proceedings described herein and presently represents NDC in the
appeal by IMS to the Court of First Instance.
.[1] The Treaty
establishing the European Economic Community (EEC) was signed in Rome on March
25, 1957, and entered into force on January 1, 1958. As the Treaty of Rome was amended, including amendments upon the
accession of new Member States, consolidated versions of what was then usually
referred to as the "EC Treaty" were periodically published. The Amsterdam Treaty, which was effective
May 1, 1999, renumbered the Articles of the EC Treaty. Articles 85 and 86 of the Treaty of Rome,
the EU counterparts of sections 1 and 2 of the Sherman Act, were renumbered as
Articles 81 and 82 of the EC Treaty.
The EC Treaty is also referred to as the Treaty Establishing the European
Community. A consolidated version the
Treaty Establishing the European Community, as amended by the Amsterdam Treaty,
1997 O.J. (C340) 145-175, is available at http://europa.eu.int/eur-lex/en/treaties/dat/ec_cons_treaty_en.pdf. The Treaty on European Union, which was
signed in Maastricht, The Netherlands, on February 7, 1992, and entered into
force on November 1,1993, created the political union among the Member States. A consolidated version of the Treaty on
European Union, as amended by the Amsterdam Treaty, 1997 O.J. (C340) 175-308,
is available at http://europa.eu.int/eur-lex/en/treaties/dat/eu_cons_treaty_en.pdf. The Treaty Establishing the European
Community and the Treaty on European Union were last amended by the Treaty of
Nice 2001 O.J. (C80/01). The Treaty of
Nice, signed on February 26, 2001, entered into force on February 1, 2003. Under the Treaty of Nice, the former Treaty
of European Union and the Treaty Establishing the European Community have been
merged into one consolidated version, 2002 O.J. (C325) 1-184, which is
available at http://europa.eu.int/eur-lex/en/dat/2002/c_325/c_32520021224en00010184.pdf.
For background see discussion of
European Treaties available at http://europa.eu.int/abc/treaties_en.htm.
[2]
This broad wording does not suggest or imply that the Member States' delegation
of power to harmonize certain forms of IP protection at EU-level, for example,
software and databases, or multilateral arrangements aimed at achieving a level
playing field, as in TRIPS, are infringements of Article 295.
[3] Case 56 &
58/64 [1966] ECR 299, at page 345
(emphasis added). Decisions by European
Commission are now appealable to the Court of First Instance, which was
established in 1989, rather than directly to the European Court of
Justice. However, judgments of the
European Court of First Instance may be appealed to the European Court of
Justice.
[4] Article
82. Any abuse by one or more
undertakings of a dominant position within the common market or in a
substantial part of it shall be prohibited as incompatible with the common
market in so far as it may affect trade between Member States.
Such abuse may, in particular, consist
in:
(a)
directly or indirectly imposing unfair purchase or selling prices or other
unfair trading conditions;
(b)
limiting production, markets or technical development to the prejudice of
consumers;
(c)
applying dissimilar conditions to equivalent transactions with other
trading parties, thereby placing them at a competitive disadvantage;
(d)
making the conclusion of contracts subject to acceptance by the other
parties of supplementary obligations which, by their nature or according to
commercial usage, have no connection with the subject of such contracts.
[5]
Case 24/67 [1968] ECR 55, at page 72 (emphasis added).
[6]
Magill TV Guide, O.J. L 78/43 (1989); affirmed in RTE v. Commission,
Case T-69/89 [1991] ECR II-485; BBC v. Commission, Case T-70/89 [1991]
ECR II-535; ITP v. Commission, Case T-76/89 [1991] ECR II-575. The judgments against RTE and ITP were both
affirmed on appeal in RTE and ITP v. Commission, Cases C-241-242/91P
[1995] ECR I-743.
[8]
As a factual matter, the broadcasters were already on the UK market with
own-channel weekly TV guides and these were deemed to be within the same
product market as the multi-channel guide introduced by Magill.
[10]
Bronner v. Mediaprint, Case
C-7/97 [1998] ECR I-7791. Although Bronner
involved the issue of whether compulsory access could be obtained to a
newspaper's home delivery system, rather than to its intellectual property, the
European Court assumed that if the Magill test of exceptional circumstances applied
to "the exercise of any property right whatsoever. . .[,]" the
applicant needed to show that the "service in itself be indispensable to
carrying on that person's business, inasmuch as there is no actual or potential
substitute in existence for that home-delivery scheme." See para. 41. In borrowing this language from Ladbroke, the European
Court finally confirmed that introduction of a "new" product is not a
prerequisite for the application of Article 82 to a refusal to license.
[11]
Ladbroke, supra, at para. 131.
[12]
Bronner, supra, at para. 40.
[13]
In the EC jurisprudential world, the value of Ladbroke and Bronner
as precedents was not diminished by the fact that, in the view of those two EC
courts, the requirements for a compulsory license were not satisfied in those
two cases.
[14]
NDC Health/IMS Health, O.J. L 59/18 (2002). An "interim decision" is an urgent remedy akin to a
preliminary injunction, and is based on a prima facie showing of infringement,
coupled with the complainant's suffering of serious and irreparable harm and a
balancing of interests. The IMS
decision, now the subject matter of an appeal by IMS to the Court of First
Instance, was subsequently suspended by an ex
parte order of the President of the Court of First Instance in IMS
Health v. Commission (Case T-184/01R [2002] ECR II-2349), then suspended by
the same judge following a hearing of both parties (Case T-184/01R2 [2002] ECR
2002). The President of the Court
affirmed the latter order in NDC Health Corp. v. IMS Health Inc. (Case
C-481-01P(R)1 [2002] ECR 3193). In
parallel copyright litigation before the Frankfurt trial court
("Landgericht"), the latter court suspended main proceedings against
NDC pending a preliminary ruling from the European Court on issues of both
copyright and the applicability of Article 82 in IMS Health GmbH v. NDC
Health GmbH, Case C-418/01.
[15]
This brick structure consisted of 1860 geographic segments of the territory of
Germany, which was formed by allocating a number of German postal codes to a
particular segment, or "brick."
[16]
NDC Health/IMS Health, supra, at paras. 68-70.
[19] Case
Nos: A3/2002/1380; A3/2002/1381, a copy
of which available at http://www.courtservice.gov.uk/judgmentsfiles/j1483/intel_v_via_technologies.htm.
[20] Para. 8.
[22]
See paras. 51, 89, 96, 97.
[24]
[1988] ECR 6211.
[30]
Strictly speaking, the essential facilities doctrine is not even necessary in a
case of discriminatory refusal to license; so here, the Court of Appeal may
have overshot his faithful reliance on EC precedent.
[31] Cases MEDED 01/2430-RIP; MEDED 01/2474-RIP. This case involved, ironically, the refusal
of several Dutch broadcasters to license coyright TV listings to the Dutch
newspaper, de Telegraaf.