Brevettazione strategica e “non uso” del brevetto

The interaction between IPRs and competition law has never been an easy one, despite the reassuring doctrines teaching us that, in the long run, and within a broad scenario, they ultimately share common goals, such as the fostering of innovation and technological progress, to the benefit of consumers. And indeed notwithstanding the modicum of market power normally afforded by a single IPR to the firm, experience has taught us that, on the one side, external factors may encroach upon the right turning it into a perilous weapon towards competitors and, on the other side, that firms nowadays tend to build portfolios of rights, whose value (being largely strategic) exceed by far the mere sum of excluding power connected to each single right. The construction of patent portfolios and the issue of strategic filing of patents in general pose a set of vexing questions, as in this latter case the conduct at issue (i.e. the mere act of patent filing) does not only seem perfectly legal under a patent law perspective, but it appears to entail the very moment of the existence of the right, traditionally exempted — by the EU jurisprudence — from competition law intervention. This contribution will focus on recent cases involving strategic filing of patents, as well as strategic acquisition of patents, and will try to frame a theory of harm, within competition law, that is both coherent with the rationale featuring EU case law regarding refusals to deal and consistent with the very same principles enshrined in the patent system.