Enforcing the Competition Law in Namibia A Toolkit - cuts ccier

More documents

Recommendations

Info

Box 34: Microsoft’s Abuse of DominanceMicrosoft is the legitimate owner of the IPRs over the personal computeroperating system (PC/OS), which is the company’s original creation. ThePC/OS is an essential facility both for users to be able to performapplications such as word processing, spreadsheet, etc; and for theapplication software developers to be able to offer a marketable productfor users. This enabled Microsoft to enjoy a monopoly power over licensingthe operating systems for PCs (with a 90-percent-plus market share and asubstantial applications barrier to entry). Restriction on end-users andmonopoly pricing are found among the various abusive conducts committedby the software giant.Microsoft does not sell its software to anyone. Instead, it parcels outdifferent bundles of rights with respect to its software. These rights, whichare bundled together as a “license,” are the only “products” that Microsoftconveys. Microsoft retains the title and all rights to its software except forthose rights, which Microsoft expressly conveys through one of theselicenses.Microsoft enters one type of license with the original equipmentmanufacturers (OEMs). The specified purposes of the license with OEMspermit them ‘to pre-install [the software] on PCs sold to end users’.On the other hand, Microsoft provides a wholly different license, knownas the end-user license agreement (EULA), to consumers. Microsoft grantsthe right to ‘use the software on the PCs’ to and only to end-users.Microsoft’s end-user license is a take-it-or-leave-it proposition and not aproduct of negotiation. The end users choose to enter the EULA licensewith Microsoft only when they first begin to use the OS, not at the times ofpurchase, payment, or other incidents of the transaction.As a direct result of Microsoft’s restrictive and exclusionary practices,end users were caused to suffer unique injury. They were deprived of thebenefits of competition, including but not limited to technologicalinnovation, market choice, product variety, and substitutable supply.COMPETITION VS INTELLECTUAL PROPERTY LAWOver time, Microsoft coupled these restrictions with other anticompetitivesteps. These included Microsoft’s nearly two-fold increase during 1998of its prices for licenses of its old and dated (but not obsolete) PC/OS tothe same level of prices charged for licenses of its new PC/OS (fromUS$49.00 to US$89.00).Source: Opinion on the Microsoft Corp. Antitrust Litigation, for the United States DistrictCourt of Maryland, MDL No. 1332, January 2001, by J. Frederick Motz, US DistrictJudge, US District Judge, Opinion on the Microsoft Corp. Antitrust Litigation, for theUnited States District Court of Maryland, MDL No. 1332, January 2001.Enforcing the Competition Law in Namibia: A Toolkit 89
COMPETITION VS INTELLECTUAL PROPERTY LAW8.5 Refusal to DealA widely accepted premise of IP laws is that IP holders are under no obligationto license subject matters protected to others. This principle is generallyheld to be true even when a firm is in possession of a monopolistic positionin a market as a result of its ownership of intellectual property. An early nonantitrustdecision by the US Supreme Court stated that the ability to excludecompetitors from the use of a new patent ‘may be said to have been of thevery essence of the rights conferred by the patent, as it is the privilege of anyowner of property to use or not use without question of motive.’ 71 On theother hand, from the perspective of IPR/competition law interface, theremay be the question of whether such duty exists.Courts in the EU and the US have at times held that refusals to license apatent violate competition law. However, in neither jurisdiction, though theyare among the most advanced jurisdictions in terms of IP and competitionlaw, have they provided clear direction as to whether a refusal to deal isanticompetitive where it involves intellectual property. Slightly different wasthe case of Brazil, where Article 21 of the Antitrust Law enlists the “nonexploitationor the inadequate use of intellectual property rights andtechnology of a company” as a strong indication that the free competitionrules have been violated.8.6 Compulsory LicensingA compulsory license is an involuntary contract between a willing buyer andan unwilling seller imposed and enforced by the state. The three mostprevalent compulsory licensing provisions are applicable where a dependentpatent is being blocked, where a patent is not being worked, or where aninvention relates to food or medicine. Additionally, compulsory licensingmay be implemented as a remedy in antitrust or misuse situations, where thewww.images.cominvention is important to national defence or where the entity acquiring thecompulsory license is the sovereign. In these cases, the public interest inbroader access to the patented invention is considered more important thanthe private interest of the right holder to fully exploit his exclusive rights.The designated third party should generally compensate the patent holder90 Enforcing the Competition Law in Namibia: A Toolkit
Page 4 and 5:
CONTENTSPreface ...................
Page 6 and 7:
LIST OF BOXESBox 1: An Overview of
Page 8 and 9:
PREFACEI am pleased to write this p
Page 10:
y the Korean Fair Trade Commission
Page 13 and 14:
RBPs : Restrictive Business Practic
Page 15 and 16:
INTRODUCTIONOver time, the Governme
Page 17 and 18:
Section 26 of the Act defines abuse
Page 19 and 20:
INTRODUCTION1.3 Country BackgroundN
Page 21 and 22:
ABOUT THE MARKET ECONOMYsales and p
Page 23 and 24:
3. MARKET AND COMPETITION3.1 Compet
Page 25 and 26:
MARKET AND COMPETITIONare able to s
Page 27 and 28:
MARKET AND COMPETITION3.3 Market Sh
Page 29 and 30:
MARKET AND COMPETITIONCompetition p
Page 31 and 32:
RESTRICTIVE BUSINESS PRACTICESmarke
Page 33 and 34:
RESTRICTIVE BUSINESS PRACTICESAccor
Page 35 and 36:
RESTRICTIVE BUSINESS PRACTICES4.3 E
Page 37:
RESTRICTIVE BUSINESS PRACTICESappli
Page 42 and 43:
for fixing prices, will refrain fro
Page 44 and 45:
Any agreement, decision and concert
Page 46 and 47:
• Agreeing with competitors that
Page 48 and 49:
customers might be able to force a
Page 50 and 51:
4.6 Vertical AgreementsVertical ant
Page 52 and 53: Box 12: Hungarian Book Publishers i
Page 54 and 55: RESTRICTIVE BUSINESS PRACTICESfor e
Page 56 and 57: Box 15. Manufacturer vs Manufacture
Page 58 and 59: Box 16: Tie-up Sales of Gas Stoves
Page 60 and 61: • directly or indirectly imposing
Page 62 and 63: Box 18: The Conduct of MTN of Charg
Page 64 and 65: Box 20: Predatory Practices in the
Page 66 and 67: Refusal to deal/supply is not expli
Page 68 and 69: A complaint file must include evide
Page 70 and 71: suppliers he tried said that they h
Page 72 and 73: information relating to the affairs
Page 74 and 75: A leniency policy describes the wri
Page 76 and 77: manufacturers regarding their respo
Page 78 and 79: (c) is able to appoint, or to veto
Page 80 and 81: 6.4 Control of MergersThe control o
Page 82 and 83: it may, within 30 days of the date
Page 84 and 85: The initial information filing typi
Page 86 and 87: Box 27: South African Pharma Merger
Page 88 and 89: The reasons for this recognition ma
Page 90 and 91: Box 30: The Graphite Electrodes Car
Page 92 and 93: Boeing convinced the EC to declare
Page 94 and 95: In India, for instance, in 1994, Hi
Page 96 and 97: 7.5 Dealing with Cross-border Issue
Page 98 and 99: In this regard, it is important to
Page 100 and 101: The following sections will set out
Page 104 and 105: through payment of remuneration. Co
Page 106 and 107: Box 36: Importation and Retailing o
Page 108 and 109: Table 1: Different Stages of Instit
Page 110 and 111: power in a fully integrated competi
Page 112 and 113: investigate managers and employees
Page 114 and 115: COMPETITION VS INTELLECTUAL PROPERT
Page 116 and 117: Namibian Consumer’s Association (
Page 118 and 119: In addition to the above-mentioned,
Page 120 and 121: staff while gaining practical exper
Page 122 and 123: To conclude, the Competition Act is
Page 124 and 125: ENDNOTES1 Available at www.cuts-int
Page 126 and 127: 50 Mehta, Pradeep S., Competition a
Page 128: Enforcing the Competition Law in Na
show all

Enforcing the Competition Law in Namibia A Toolkit - cuts ccier

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?