From the abuse of Community (IP) law to the abuse of (intellectual) property rights: time for an EU patent misuse doctrine?

In the attempt of drawing the boundaries of IPRs within the interface between EU competition and patent law, the CJEU devised the concepts of existence-exercise dichotomy and specific subject-matter, also articulating the essential function doctrine. Whilst their meaning remains controversial, several EU decisions may be of some help to understand which remedies and limits to patent over-enforcement currently exist in case-law. In particular, the various IP-driven abuses constitute the core of this article. Patent litigation is seen through the lens of the abuse of Community law doctrine, as well as through the concepts of abuse inferable from CJEU and Member State case-law. Thus the interplay between the abuse of dominant position and IP malpractice is explored, also looking at some national patent litigation decisions. The ultimate scope is to analyze the legal nature of the different types of abuses of IPRs from the perspectives of competition law, contract law and procedural law. The proliferation of abuses within the IP context undoubtedly leads to uncertainty and fragmentation in remedies in the EU. Thus this article tries to infer hints towards a uniform solution from United States. Specifically, three remedies against abuses of IPRs devised at US level are explored in a comparative fashion, so as to investigate if there is room under IP law or equitable principles for a unitary doctrinal framework of defenses against infringement.