Antitrust Liability For Refusal To License Intellectual Property: A Comparative Analysis and the International Setting

Antitrust and IP law both share the goals of promoting innovation and benefiting consumers. A potential for conflict exists, however, when a dominant firm\u27s refusal to license IP rights affects the dynamics of competition. Antitrust intervention in IP rights can reduce incentives to invest, whereas a failure to allow anticompetitive behavior can harm consumers and competitors while reducing the efficiency of the economic system. The author reviews the European and United States approaches to monopolization claims involving IP rights. The European approach is limited by the mismatch between national enforcement of IP rights and community enforcement of antitrust law. The U.S. approach shows a trend toward shielding IP rights against antitrust enforcement. In the author\u27s view, European antitrust enforcement bodies are more concerned than U.S. antitrust bodies about the anticompetitive risks associated with IP rights. Neither approach provides a definitive answer as to when, and under what conditions, a refusal to share IP rights would trigger antitrust liability. The author provides a checklist of the remaining open issues and proposes an additional analysis through which a better balance could be achieved: exploring the relationship between abuse of IP rights under Article 8.2 of the TRIPs Agreement and the abuse of market power