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Article: A new approach to resolving refusal to license intellectual property rights disputes

TitleA new approach to resolving refusal to license intellectual property rights disputes
Authors
KeywordsRefusal to license
Competition law
Antitrust law
Intellectual property
Antitrust/IP interface
Microsoft
Issue Date2011
PublisherKluwer Law International.
Citation
World Competition: Law and Economics Review, 2011, v. 34 n. 2, p. 261-286 How to Cite?
AbstractThis article proposes a new approach to resolving the conundrum of a monopolist refusing to license intellectual property rights to a competitor, one of the most complex issues at the interface between intellectual property and competition law. It reviews the approaches adopted by the competition authorities in both the European Union and United States when confronted with this perplexing issue, and argues that the extreme positions they took – either that competition should trump intellectual property rights (IPRs) or that IPRs should trump competition – were mistakenly simplistic. The article proceeds to argue that the preferred approach is to strike an appropriate balance between anticompetitive effects and procompetitive effects of a refusal to license, and accordingly allocative efficiency losses and dynamic efficiency gains. A substantial part of this article is devoted to a proposed framework illustrating how the balance can be struck, emphasizing how the refusal at issue interacts with various circumstantial factors such as market power, network effects, monopoly leveraging, predatory intent, degree of follow-on innovation, and the causal connection between IPR protection and innovation incentives. Reference will be made to precedents from the European Union (Magill, IMS, and Microsoft) and United States (Kodak and Xerox) in explaining how the framework works in practice.
Persistent Identifierhttp://hdl.handle.net/10722/163577
ISSN
SSRN

 

DC FieldValueLanguage
dc.contributor.authorKwok, KHF-
dc.date.accessioned2012-09-05T07:12:37Z-
dc.date.available2012-09-05T07:12:37Z-
dc.date.issued2011-
dc.identifier.citationWorld Competition: Law and Economics Review, 2011, v. 34 n. 2, p. 261-286-
dc.identifier.issn1011-4548-
dc.identifier.urihttp://hdl.handle.net/10722/163577-
dc.description.abstractThis article proposes a new approach to resolving the conundrum of a monopolist refusing to license intellectual property rights to a competitor, one of the most complex issues at the interface between intellectual property and competition law. It reviews the approaches adopted by the competition authorities in both the European Union and United States when confronted with this perplexing issue, and argues that the extreme positions they took – either that competition should trump intellectual property rights (IPRs) or that IPRs should trump competition – were mistakenly simplistic. The article proceeds to argue that the preferred approach is to strike an appropriate balance between anticompetitive effects and procompetitive effects of a refusal to license, and accordingly allocative efficiency losses and dynamic efficiency gains. A substantial part of this article is devoted to a proposed framework illustrating how the balance can be struck, emphasizing how the refusal at issue interacts with various circumstantial factors such as market power, network effects, monopoly leveraging, predatory intent, degree of follow-on innovation, and the causal connection between IPR protection and innovation incentives. Reference will be made to precedents from the European Union (Magill, IMS, and Microsoft) and United States (Kodak and Xerox) in explaining how the framework works in practice.-
dc.languageeng-
dc.publisherKluwer Law International.-
dc.relation.ispartofWorld Competition: Law and Economics Review-
dc.subjectRefusal to license-
dc.subjectCompetition law-
dc.subjectAntitrust law-
dc.subjectIntellectual property-
dc.subjectAntitrust/IP interface-
dc.subjectMicrosoft-
dc.titleA new approach to resolving refusal to license intellectual property rights disputesen_US
dc.typeArticleen_US
dc.identifier.emailKwok, HF: khfkwok@hku.hk-
dc.identifier.hkuros217701-
dc.identifier.volume34-
dc.identifier.issue2-
dc.identifier.spage261-
dc.identifier.epage286-
dc.publisher.placeNetherlands-
dc.identifier.ssrn1903690-

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