EC Competition Law and Intellectual Property Rights: the Regulation of Innovation

The United States of America and the European Community1 have dealt with competition law and intellectual property rights by methods that are historically contrasting and institutionally diverse. The historical contrast is the sequence in which the two legal subjects became creatures of central legislation. The U.S. Constitution of 1787 granted the federal Congress power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,”2 but left federal competition law to be asserted in a later century, and then not by Constitutional amendment but as implied in the power of Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”3 The E.C. Rome Treaty of 1957 created supra-national competition rules implementable by Community legislation,4 but granted no central authority to create intellectual property rights, and mentioned “the protection of industrial and commercial property”5 merely as