Research Handbook on Intellectual Property and Competition Law
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Research Handbook on Intellectual Property and Competition Law

Edited by Josef Drexl

This comprehensive Handbook brings together contributions from American, Canadian, European, and Japanese writers to better explore the interface between competition and intellectual property law. Issues range from the fundamental to the specific, each considered from the angle of cartels, dominant positions, and mergers. Topics covered include, among others, technology licensing, the doctrine of exhaustion, network industries, innovation, patents, and copyright.
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Chapter 9: Unilateral Refusal to License Indispensable Intellectual Property Rights – US and EU Approaches

Beatriz Conde Gallego


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, [1988] ECR 6211, para. 8; Joined Cases C-241/91P and C-242/91P, RTE and ITP v. Commission (‘Magill’), [1995] ECR I-743, para. 49; Case C-418/01, IMS Health, [2004] 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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