Attheraces v British Horseracing Board: What price abuse of dominance?

Legal context: This article concerns the interplay between the competitionrules (abuse of dominance) and intellectual property; the extentto which dominant companies are free to set the price for accessto their IP; and excessive and discriminatory pricing. Key points: The Court of Appeal of England and Wales held that the BritishHorseracing Board (BHB) had not breached the competition rules.It overturned the High Court's decision that the BHB had chargedexcessive prices for access to its database of information.The Court of Appeal found that in determining whether a priceis excessive (and therefore a breach of competition law), itis not sufficient to look only at the level of the dominantcompany's return on its costs. This ‘cost +’ assessmentis only one element of the analysis which must be carried out. Practical significance: This case is apparently good news for IP owners, as it suggeststhat the legal test for showing excessive pricing is very high.However, the case also suggests that bringing a private actionto enforce the competition rules will remain extremely difficult.This may have a chilling effect on the development of the lawand in some cases may be to the public's detriment.     

FRANDly fire: are industry standards doing more harm than good?

Legal context: The role of IP rights in standards; the meaning of the obligationimposed by many standards bodies on essential patent holdersto licence on fair, reasonable, and non-discriminatory (‘FRAND’)terms; the example of IPR policy of the European TelecommunicationsStandards Institute; recent US developments. Key points: Industry standards are of key commercial and technical significance.Yet many standards are currently burdened by litigation betweenessential patent holders and licensees. Such standards bodieshave been slow to give guidance on the meaning of the obligationsimposed on essential patent holders. This article takes theexample of the obligation to licence essential patents on FRANDterms, analysing the obligation in the context of European competitionlaw. The article concludes with some suggestions for pointsfor companies to include in their internal policies on licensingstandards essential patents. Practical significance: The meaning of the obligation to licence on FRAND terms is veryimportant for licensors and licensees alike. This article putsthe obligation in context and discusses the various approacheswhich may be taken in practice.     

The Commission's AstraZeneca decision: delaying generic entry is an abuse of a dominant position

The European Commission's recent AstraZeneca decision introducesabuse of the patent system as a novel type of infringement ofArticle 82 EC.     

Gift aid applies for a passport: Hein Persche v Finanzamt Ludenscheid (C-318/07)

The lack of a common understanding of what a charity is, andthe general refusal of relief for cross-border gifts, can distortthe charitable "market" by favouring local charities over thoseestablished in other countries. Territorial restrictions ontax incentives frequently add to the administrative costs ofgiving to charity, by forcing donors to use local charitiesas conduits for cross-border gifts. They may even dissuade apotential donor from giving at all. All of this may be aboutto change—at least within the EU. We now have the opinionof Advocate General Mengozzi in the Persche case, which concernsthe argument that territorial restrictions on tax incentivesfor charitable giving contravene the provisions of the EU Treatyregarding the free movement of capital.