Intellectual Property, Antitrust, and Access to Essential Technologies

Abstract

This Article explores whether and how we may leverage antitrust law to
calibrate the exploitation of intellectual property (“IP”) rights—e.g., IP
licensing—to facilitate needed access to essential technologies. The Article’s
motivation is to help developing countries find an effective way to address their
complaints that owners of IP-protected technologies refuse to license needed
technologies or charge unfairly high prices. The Article concludes that
leveraging antitrust law unilaterally to address these typical challenges
developing countries experience in accessing essential technologies may be more
effective and efficient than attempting to change the IP regime. The IP regime
is governed by negotiated and established multilateral instruments and is likely
helpful in promoting international technology transfer and domestic
technology innovation.

In answering the question of whether we may leverage antitrust law to improve
access to essential technologies, the Article explores the conceptual linkages
among IP, antitrust law, and access to essential technologies, examining the
diverse approaches toward the IP–antitrust interface by multilateral, regional,
bilateral, and jurisdictional instruments. In answering the question of how we
may do so, the Article suggests a possible approach containing four main
aspects. In doing so, the Article presents reference points for implementing this
approach by comparing courses taken by three major antitrust regimes—the
United States, the European Union, and China—toward controversial topics
such as refusal to license, the essential facilities doctrine, and excessive pricing.
The Article then discusses the necessary balancing considerations for
implementing this approach. It also considers the barriers developing countries
need to overcome for the implementation.

Keywords: Intellectual Property, Antitrust, Access to Essential Technologies, IP-Antitrust Interface, Technology Transfer, Public Interest, Social Welfare, National Development