Unilateral Refusals to License in the U.S.
Most antitrust claims relating to intellectual property involve challengesto agreements, licensing practices or affirmative conduct involving the useor disposition of the intellectual property rights or the products theycover. But sometimes an antitrust claim centers on an intellectual propertyowner's refusal to use or license an intellectual property right, perhapscoupled with efforts to enforce the intellectual property right againstinfringers. The allegation may be that the intellectual property right isso essential to competition that it must be licensed across the board, orthat a refusal to license it to one particular party was discriminatory, orthat in context a refusal to license helped a monopolist to acquire ormaintain market power.Claims based on a unilateral refusal to license - the subject of thischapter - present important issues at the center of the tension betweenantitrust and intellectual property. The antitrust and intellectualproperty laws are not necessarily in conflict. For the most part they servecomplementary goals, though each must limit the scope of the other.Unilateral refusal to license cases, however, cut to the heart of theintellectual property owner's right to exclude others from practicing theintellectual property. As such, efforts to invoke antitrust law in thiscontext deserve special scrutiny.Section 2 reviews the basic principles relating to unilateral refusals tolicense intellectual property rights. Section 3 discusses in detail thevarious sets of circumstances in which antitrust plaintiffs argue forexceptions to those basic rules. Section 4 distinguishes unilateral fromconcerted and conditional refusals to deal.