The Application of the Essential Facilities Doctrine to Intellectual Property Licensing in the European Union and the United States: Are Intellectual Property Rights Still Sacrosant?

Publication of Sergio Baches Opi in “Fordham Intellectual Property, Meida & Entertainment Law Journal” nº2 (winter 2001) examining the application of the essential facilities doctrine to refusals to license IPRs in the United States and the European Union.

July 18, 2001

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TABLE OF CONTENTS:

INTRODUCTION

I. THE DIFFERENT APPROACHES TOWARDS THE APPLICATION OF THE ESSENTIAL FACILITIES DOCTRINE IN THE EUROPEAN UNION AND THE UNITED STATES

II. THE APPLICATION OF THE ESSENTIAL FACILITIES DOCTRINE TO REFUSALS TO DEAL

A. Overview

1. Concept

2. The Basic Provisions

B. The Essential Facilities Soctrine in the European Union

C. The Application of the Essential Facilities Doctrine in the United States

1. The Essential Facilities Doctrine After Aspen Skiing

2. The Main Difference Between the Unite States and the European Union Systems

III. THE APPLICATION OF THE ESSENTIAL FACILITIES DOCTRINE TO INTELLECTUAL PROPERTY RIGHTS

A. When Refusals to License Intellectual Property Rights and Antitrust Law Conflict?

1. Overview

2. Theories Proposed to Solve the Intellectual Property Law/Antitrust Law Conflict

B. Inroads on the Traditional Approach

C. The Application in the European Union of the Essential Facilities Doctrine to Refusals to License

1. The jurisprudence of the European Court of Justice Prior to Magill

2. The impact of Magill to on Refusals to License Intellectual Property Rights

D. The Application in the European Union of the Essential Facilities Doctrine to Refusals to License Intellectual Property in the United States

1. Overview

1. The United States Supreme Court Case Law

2. The Relevance of the Protection of Innovative Markets for the Development of the Essential Facilities Doctrine: The Microsoft and Intel Cases

1. The Implementation of Intellectual Property Guidelines

2. The Microsoft Case and the Essential Facilities Doctrine

3. The Intel Case: The Federal Trade Comission Complaint and Consent Order

2. Refusals to License: Is Antitrust Law Encroaching Upon Intellectual Property Law’s Domain

1. The Tide is Rising for Intellectual Property Rights: Data General, Kodak II and the Federal Trade Commission Consent Decree in Intel

2. The Tide is Turning for Intellectual Property Rights: The Xerox and the Intel Cases

i. The Intel Case

ii. The Xerox Case: Data General and Xerox Distinguised

IV. A NEW THEORY TO IDENTIFY SITUATIONS THAT MAY WARRANT THE APPLICATIONS OF ANTITRUST LAWS TO REFUSALS TO LICENSE

CONCLUSION