Competition law and patent law are essential for the biotechnology industry. Since the case of
Diamond v. Chakrabarty, when the U.S. Supreme Court first allowed the patenting of organisms
produced by human intervention, the trend of granting broad patents took hold. A similar trend can be
observed in Europe. This can limit innovation and have anti-competitive effects. In the biotechnology
sector, competition is threatened by broad patents on innovations, which are the result of fundamental
prior research, which can lead to “anticommons” effects. Patent law must take the lead by limiting the
scope of patents on upstream inventions. Competition law must play a complementary role, supported
by an economic analysis of static and dynamic effects. There is no simple answer to the question of
whether a concentrated or more competitive market structure is more appropriate for the sequential
nature of biotechnology innovation. Although there is an overlap between regulation and approaches
in the EU and the US, there are also differences. In EU case law, the principle of market integration
plays an important role. Although antitrust and intellectual property in the long run both have the goal
of increasing consumer welfare, in practice these goals have in some cases led to the immunity of
intellectual property rights in the US. In the EU, the authorities have taken a more flexible approach,
assessing the circumstances of each case. The divergence in approaches is the result of different
competition law assessments of unilateral exclusionary practices. With regard to refusals to deal and
cases in the area of essential facilities, differing views have emerged as to which means are
appropriate to protect competition. The issue of the relationship between intellectual property rights
and competition law will continue to evolve. Biotechnology, as an innovative and capital-intensive
industry, is not only a consequence of regulation, but also spurs legal development.
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