Edited by Josef Drexl
Chapter 9: Unilateral Refusal to License Indispensable Intellectual Property Rights – US and EU Approaches
Beatriz Conde Gallego 1 Introduction The question of whether, and if so, under which conditions the owner of an intellectual property right (hereafter ‘IPR’) can be compelled as a matter of competition law to grant a licence to a third party (which in most cases will be a competitor) touches the interface problem at its very heart. As a matter of principle, nobody would contest that the owner of an IPR may lawfully exclude third parties from making, using or selling the IP-protected product or service. Moreover, it is also undisputed that the right of exclusion inherent to IPRs includes the right to refuse to grant a licence and that this right may be limited only in certain (exceptional) circumstances.1 Consensus disappears, however, when it comes to determining these circumstances. Not only does a gulf exist between the approaches followed on both sides of the Atlantic.2 1 See for European law Case 238/87, Volvo,  ECR 6211, para. 8; Joined Cases C-241/91P and C-242/91P, RTE and ITP v. Commission (‘Magill’),  ECR I-743, para. 49; Case C-418/01, IMS Health,  ECR I-5039, para. 34. For the US see Hartford-Empire Co. v. United States, 323 U.S. 386, 432 (1945) (holding that the patent owner ‘has no obligation either to use [the patent] or to grant its use to others’); Stewart v. Abend, 495 US 207, at 228 (1990) (stating that ‘a copyright owner has the capacity arbitrarily to refuse to license one who seeks to exploit the work’); In re Independent...
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