An analysis of the interface between competition law and intellectual property law: A legislative solution to the issue of IP-based anti-competitive abuses in digital application marketplaces

Howard, Michael 2025. An analysis of the interface between competition law and intellectual property law: A legislative solution to the issue of IP-based anti-competitive abuses in digital application marketplaces. PhD Thesis, Cardiff University. Item availability restricted.

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Abstract

This thesis investigates the complex interface between competition law and intellectual property (IP) law within the context of digital application marketplaces (DAMs). It addresses the central question of how European Union (EU) competition law can respond to IP-based anti-competitive abuses in rapidly evolving digital markets. Traditional doctrines, particularly Article 102 TFEU and the essential facilities doctrine, have proven ill-suited to capture the realities of consumer lock-in, technological dependency, and the strategic deployment of IP rights. Using case studies across mobile, console, and eBook marketplaces, the research highlights practices such as tying, bundling, refusal to supply, and leveraging interoperability, all of which demonstrate the tension between IP protection and market contestability. The analysis reveals that while dominance is increasingly entrenched through control of interoperability code, hypervisors, and networking functions, EU competition enforcement remains reactive, slow, and fragmented. The Digital Markets Act (DMA) represents a significant regulatory intervention, providing ex ante obligations for gatekeepers. However, its failure to adequately integrate IP considerations, coupled with its selective scope, leaves critical gaps in addressing exclusionary conduct. To remedy this, the thesis advances a legislative solution: the Digital Essential Facilities Regulation (DEFR). By designating DAMs themselves as essential facilities, this proposal ensures that third-party suppliers gain fair access under reasonable terms, while safeguarding consumers against foreclosure and enhancing intra-platform competition. Unlike judicially constrained doctrines, the DEFR provides an ex ante, uniform framework that reconciles respect for IP rights with the imperative of open digital markets. The research concludes that legislative adaptation is necessary to protect consumer welfare and innovation in the digital economy. Only by rebalancing the interface between IP exclusivity and competition principles can EU law sustain its foundational promise of open, fair, and dynamic markets in the digital age.

Item Type:	Thesis (PhD)
Date Type:	Completion
Status:	Unpublished
Schools:	Schools > Law
Subjects:	K Law > K Law (General)
Uncontrolled Keywords:	EU competition law; intellectual property law; digital application marketplaces; digital markets; Article 102 TFEU; abuse of dominance; essential facilities doctrine; Digital Markets Act; refusal to supply; tying and bundling; interoperability; Digital Essential Facilities Regulation
Date of First Compliant Deposit:	12 August 2026
Last Modified:	12 Aug 2026 11:44
URI:	https://orca.cardiff.ac.uk/id/eprint/188939

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