A Comparative Economic Analysis of US and EU Law
Chapter 5: Refusals to License IPRs
THE CASE FOR AN AFTER-THE-FACT, CASE-BYCASE CONFLICT We have previously discussed the competitive implications of IPRs ownership. This chapter turns to the case of a dominant firm that enforces one of the fundamental rights that IPRs grant,1 namely, the right to exclude third parties from the use of the protected intellectual goods. It discusses whether economic models, on the one hand, and US and EU case law, on the other hand, have ever found such behavior harmful. In particular, after a brief review of the economic literature about foreclosure, and the short discussion of the US and EU refusal to deal doctrines – which, indeed, are the logical forerunners of the US and EU refusal to license doctrines2 – the chapter inquires if the standards that the 1 After all, as said previously, from the legal standpoint IPRs are ius excludendi alios and from the economic standpoint it is just the power to exclude that justifies their existence. 2 The chapter avoids any discussion of the ‘essential facilities doctrine’. It is ‘unnecessary’, when it does not add anything to conditions that refusal to deal doctrines set forth in order to find a behavior unlawful. It is ‘harmful’ when, by inducing a less sophisticated economic analysis of the regarded scenario, it derives automatically the existence of competitive harm from the essential nature of the requested resource and, hence, it works as a further stand-alone base for the antitrust action, in addition to the refusal to deal doctrine. See, in this regard, 3B...
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