The Contestable and Potentially Harmful Conclusions of the 'Microsoft' Case

Inhaltsverzeichnis (Table of Contents)

• INTRODUCTION
• Thesis, Aims and Outline
• PART ONE: Contextualisation of the Microsoft Judgment
• CHAPTER 1 – THE THEORY AND PRACTICE OF THE CONTROVERSIAL INTERFACE BETWEEN IPRS AND COMPETITION LAW, AND THE EXERCISE OF TYING
• 1.1. IPRs and Competition Law in Legal Theory
• 1.2. IPRs and Competition Law in Legal Practice
• 1.3. The Exercise of Tying in Theory and Practice
• PART TWO: The Controversial and Contestable Conclusions of the Microsoft Judgment
• CHAPTER 2 – A DRAMATIC ATTENUATION OF THE EXCEPTIONAL CIRCUMSTANCES CRITERIA
• 2.1. The Indispensability Criterion
• 2.2. The Elimination of Competition Criterion
• 2.3. The New Product Criterion
• 2.4. Chapter Conclusions and Implications
• CHAPTER 3 – THE APPLICATION OF A FLAWED AND INAPPROPRIATE FORM-BASED TYING TEST
• 3.1. The Separate Products Element
• 3.2. The Foreclosure Element
• 3.2. The Choice/Coercion Element
• 3.4. The Objective Justification Element
• 3.5. Chapter Conclusions and Implications

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

The aim of this dissertation is to scrutinize the conclusions reached by the Court of First Instance (CFI) in the Microsoft case, arguing that they are highly contestable on both legal and factual grounds. The dissertation aims to demonstrate how these conclusions are likely to have significant ramifications for innovation and economic progress in Europe.

• The controversial interface between intellectual property rights (IPRs) and competition law.
• The application of the exceptional circumstances test in compulsory licensing cases.
• The appropriateness of the traditional form-based tying test in high-tech markets.
• The potential impact of the Microsoft case on innovation and consumer welfare.
• The need for a more nuanced and effects-based approach to competition law in high-tech industries.

Zusammenfassung der Kapitel (Chapter Summaries)

Chapter 1 sets the stage by exploring the theoretical and practical aspects of the intersection between IPRs and competition law. It highlights the fundamental importance of balancing these two bodies of law while ensuring the effective protection of IPRs. The chapter also examines the concept of tying and its application in the context of competition law.

Chapter 2 focuses on the Microsoft judgment, examining the Court’s controversial attenuation of the exceptional circumstances test. This chapter analyzes the application of each of the exceptional circumstances criteria in the context of Microsoft, arguing that the Court’s conclusions are highly debatable and likely to have detrimental effects on innovation incentives.

Chapter 3 delves into the application of the traditional form-based tying test in the Microsoft case. The chapter argues that the test is inappropriate in the context of high-tech markets and that the Court’s conclusions are legally and factually contestable. It also highlights the potential for such an approach to stifle innovation by wrongfully condemning beneficial technical integration as abusive.

Schlüsselwörter (Keywords)

This dissertation focuses on the contentious interplay between intellectual property rights and competition law in the context of high-tech markets. The analysis centers on the Microsoft case, examining the Court’s application of the exceptional circumstances test for compulsory licensing and its use of the form-based tying test. The key themes explored include the potential ramifications for innovation, consumer welfare, and the overall European economy.