The Microsoft Decision: Setback to Intellectual Property Rights in Europe?

Legal context This article examines whether the Court of First Instance ruling in Microsoft v Commission is a setback to IP rights protection in Europe. It analyses the Microsoft ruling against case law involving the interaction between IP rights and competition law.

Key points The article highlights the difficulty in identifying the degree of interoperability as required under the EU Software Directive that will be necessary for competitors to compete effectively with Microsoft. Though the Software Directive does not envision the use of interoperability information for any other purpose other than interoperability, the CFI ruling hinges on the assumption that compulsorily granting the information to competitors will result in technical development of competitor's products. In addition, the article highlights the imperfections in the Microsoft ruling and its related consequences.

Practical significance The article finds that the parameters of abuse under Article 82 of the Treaty have been stretched to capture Microsoft's conduct. The CFI ruling upsets the balance between copyright and competition policy envisioned in the Software Directive. The article emphasizes the dangers to competition and innovation in the market by the grant of remedies that are too lenient, too severe, too late, not administrable, or otherwise poorly conceived or implemented. Finally, the article argues that the Microsoft ruling may be an indication that the lack of an IP institution equivalent to DG Competition in the EU has had the consequence of competition law being able to chip away the classical privileges of IP rights granted by national laws.