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Rita Coco, Paolisa Nebbia, Compulsory licensing and interim measures in Merck: a case for Italy or for antitrust law?, Journal of Intellectual Property Law & Practice, Volume 2, Issue 7, JULY 2007, Pages 452–462, https://doi.org/10.1093/jiplp/jpm074
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Abstract
This paper examines an important decision of the Italian Competition Authority in a case concerning the compulsory licence of IP rights. The oddity of the case lies in the fact that the dominant position of the defendant seemed to be due, rather than to the fact that the latter held certain IP rights, to a peculiar de facto situation.
As a result, the competition authority did not apply the test that is traditionally used in cases of abuses involving IP rights, but the plain ‘essential facilities’ doctrine.
The case shows that the borderline between these two types of abuses is a difficult one to draw, and more generally that the complex relationship between competition law and IP is in need of clarification. The paper also deals with the issue, raised by the same case, of whether, in the absence of national provision to this effect, national competition authorities have any power to issue interim measures.
