Intellectual Property Rights at the Crossroad Between Monopolization and Abuse of Dominant Position: American and European Approaches Compared

Abstract:     
As intellectual property rights have encountered an expansive trend throughout the world, the debate on the relation between IPRs and competition law has regained enormous attention.

The discussion about whether antitrust law is (or should) be the most appropriate instrument to constraint an over-expansionist application of IPRs has found strong supporters and opponents on both sides of the Atlantic.

However, American courts and European agencies have adopted a quite different approach in the treatment of anticompetitive conduct favored by the exploitation of an intellectual property right. Namely, American courts have shown a tendency to refrain competition law tools from interfering with intangible monopolies, while European agencies have severely constrained monopolists' conduct that - in the most common example - use IPRs to leverage their dominant position in a second market.

This paper aims at studying and comparing the diverse approaches outlined above starting the analysis from the normative and conceptual difference between American monopolization and attempt to monopolize claims and European abuse of dominant position. As we will see, significant differences exist between these doctrines which have exerted a significant impact on the way courts apply competition tools towards IPRs.

Number of Pages in PDF File: 45

Keywords: Monopolization, attempt to monopolize, abuse, dominance, intellectual property, patent, copyright, Microsoft, IMS, Datageneral, Illinois Tool, Magill, Kodak, refusal to license, unilateral conduct

JEL Classification: K21, L12, L41, O34

Accepted Paper Series