When Does a Unilateral Unconditional Refusal to License or to Provide Information Become an Antitrust Concern? A United States and European Comparison

Abstract

There is still a huge debate about the legal approach towards the intersection of antitrust and intellectual property law around the globe. In an Industry Age, which is more and more relying on intellectual properties, it is necessary to define legal standards of antitrust liability in cases where an intellectual property holder refuses to license his or her exclusive right. Clearly, the jurisprudence has been developing to stricter standards if compulsory licensing is involved. The question is, however, whether stronger standards towards intangible properties than towards tangible properties are necessary and justified. The right standard is critical because at risk are not only the always used incentive to innovate but also the development of related markets and potential future technologies if the intellectual property holder’s exclusive rights play the key roll.This paper will compare the different avenues taken by the U.S. and E.U. in solving this issue adequately. It puts some light on two different situations. Such where the intellectual property holder refused to deal his exclusive right where he has never dealt it to the antitrust plaintiff and situations where he has licensed his right but stopped continuing to deal it. The article explores that the E.U. is seemingly a step ahead by using the modified essential facility doctrine which combines an economic and inherent intellectual property policy approach.