One of the most persistent tensions in the modern market economy lies at the intersection of competition law and intellectual property law. Whilst competition law strives to maintain a level of effective competition, intellectual property law, on the other hand, permits the granting of exclusive rights. The prevailing view today sets aside the original assumption of an inherent conflict between the two fields and emphasises their essential complementarity. Only by simultaneously recognising the benefits of both fields of law will we be able, over time, to ensure effective competition, foster innovation and enhance consumer welfare in the long term. In practice, taking these dynamic effects into consideration has led to the development of numerous standards and doctrines that seek to strike a balance between the protection of exclusive rights and the prevention of anti-competitive behaviour. As a fundamental and essential starting point, the exclusive nature of rights in itself is not problematic – it does not automatically imply the existence of a restrictive agreement or the abuse of a dominant position. It only becomes problematic when exercised in a manner that actually restricts competition. Given the wide variety of practices by intellectual property rights holders as well as the absence of uniform rules at EU level governing their permission, the regulation of such conduct has proved particularly challenging in practice. Although the block exemption regulations together with case law contribute to greater legal certainty and predictability, the rapid pace of innovation and continuously evolving market conditions raise questions as to whether the existing approaches will remain sustainable in the future.
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