- European Union — Copyright — Rights — United States
Market definition is antitrust’s first port of call in analysing nonhardcore offences. It is the foundation on which almost all competition analysis rests. Defence lawyers who convince agencies or courts to define the relevant market expansively often defeat liability or merger challenges, while plaintiffs who show a narrow market often establish sufficient market power to trigger application of the pertinent US or EU antitrust statute. This chapter deals with market definition and monopoly power, addressing US and EU laws in turn. It first contextualizes that discussion by exploring the idiosyncratic market-definition questions that are unique to the antitrust–patent space. It then discusses US and EU law on market power, focusing in particular on how authorities try to separate the fact and legality of monopoly power held by a patentee. Next, it explains how the law defines markets that feature patented technology. It separately addresses upstream technology-licensing and downstream product markets.