EU Commissioner Kroes recently responded to a Parliament question. As you know a vendor took over all competition law professionals and made monkeys out of the Commissioner by ignoring the public institution and its sanctions. And they apparently got MEP Renato Brunetta to pose a question inspired by their propaganda.
- What principles of Community law does DG Competition cite in order to justify its recent decisions, which appear to alter the legal protection afforded to commercial secrets (which will in future be granted a lower level of protection than that offered to other forms of intellectual property)?
This will require patent-holding companies to grant users' licences to other parties on the basis of a mere assessment carried out by the above-mentioned DG - an assessment based on whether or not a patented product is required to be innovative.
- What standards does DG Competition intend to adopt for the purpose of establishing the degree of innovation required in order for a product to secure legal protection?
…
In view of the importance which the system of legal protection for patents has assumed in the European and international economy, is the Commission aware of the damage which a reinterpretation of European law could cause to companies operating on the European market by depriving them of a tool [i.e. patents and disclosed information] which they need in order to compete on international markets?
Commissioner Kroes answered:
The competition rules, in particular Articles 81 and 82 of the EC Treaty, do not interfere with the existence or legal validity of intellectual property rights but are only applied to ensure that the exploitation or exercise of an intellectual property right does not distort effective competition within the EU.
In its application of competition law the Commission, therefore, does not call into question the legal validity of a granted patent or the novelty and non-obviousness of the patented invention. However, the Commission strives to ensure that right holders do not distort competition in exercising their patent rights.
Or decoded: It all about enforcement, stupid.
The legal protection of business or trade secrets is not harmonised in the EU and, therefore, dependent on national law and the jurisdiction of the national courts of Member States. In applying competition law the Commission, whilst accepting these differences in the protection of business or trade secrets according to Member States' laws, attempts to prevent the misuse of business or trade secrets for anticompetitive purposes.
But then Kroes says she is not able to act at all and dismantles competition policy:
Lastly, it should also be pointed out that there is no general obligation under EU competition rules to license patents or disclose business or trade secrets, not even where a company acquires or already has a dominant position on a technology or product market. A refusal to license patents or disclose business or trade secrets can only under exceptional circumstances be considered an abuse of a dominant position.
So in short competition law won't help and Kroes will not act to prevent anti-competitive use of patents and "trade secrets"(undisclosed standard information according to the vendor). In fact Antitrust law has shown to us that it is not equipped with sufficient powers to stop abuse. EU-Centralisation of competition policy weakened old ordoliberal traditions. No wonder Nicholas Sarkozy called for the reference in the EU-Treaty to the goal of "free and undistorted competition" to be removed.
