The Antitrust Duty to Deal and Intellectual Property Rights

This Article discusses how courts have addressed so-called ‘ duty-to-deal antitrust claims involving intellectual property, and what they should do in those circumstances to ensure appropriate deference to the competition goals of intellectual property doctrine. Part II discusses duty-to-deal principles in the general case, where intellectual property rights are not at issue, noting that hard and fast rules have yet to emerge. Part III discusses the approaches courts have taken in the intellectual property context and contends that, although many courts have conducted their analyses with a view to the objectives of patent law, at least two have not, with potentially detrimental consequences for the preservation of patent rights. Part IV discusses two recent cases involving significant antitrust and intellectual property issues—In re Intel Corp. and United States v. Microsoft. Each of the cases highlights a different facet that courts must consider as they confront an increasing number of cases with intellectual property and antitrust implications. The Article concludes by suggesting that any doctrine endeavoring to navigate the waters of intellectual property/antitrust cases must devote considerable attention to patent law and its objectives. When that attention is given, there are only a few circumstances (involving intellectual property rights) in which a duty to deal should be imposed