“Intellectual property rights at the crossroad between monopolization and abuse of dominant position: American and European approaches compared”

As is very well known, intellectual property rights throughout the world have recently experienced a massive expansionist trend. Patent law has slowly stretched the boundaries of patentable subject matter to cover DNA sequences, software and business methods, leaving commentators to wonder whether it still make sense to inquire about what can and cannot be patented in the first place. Similarly, copyright law has been expanding in all possible directions: not just new subject matters have been added and new set of rights created, but the length of protection has been extended, and even a new set of exclusive rights has been created to protect technological measures that, in turn, are meant to protect copyrighted works. Such trends have been strongly backed by a reverse tendency in the application of antitrust laws towards anticompetitive practices involving intangible monopolies. After a period of hostility when antitrust laws, both in U.S. and E.U., severely constrained IP-owners’ licensing practices and unilateral behaviors, the wind changed again toward a more pro-IP attitude. This new approach has played a central role in strengthening IP-owners’ exclusive rights by allowing them to obtain a far greater monopoly than the one they were entitled to. Despite the major commonalities of approaches taken by United States and Europe, it is important to point out that some discrepancies have occurred with regard to the way the two systems have assessed anticompetitive behaviors endorsed by dominant firms whose position of strength stems, in great part, from intellectual property rights. Indeed, as I will show in this study, American antitrust treatment of refusal to deal cases has created a de facto immunity from antitrust intervention for unilateral conduct of dominant undertaking holding intellectual assets. Conversely, European antitrust law has endorsed a more restrictive attitude, holding that when exceptional circumstances do exist, the exclusive faculty of the IP-owner can be curtailed in favor of a more competitive structure of the market. As I will explain, the reasons for these discrepancies can be also traced back to more general differences of American and European assessment of anticompetitive unilateral conduct. This study is divided into three sections. The first section will be devoted to a comparative study of American and European antitrust provisions dealing with unilateral exclusionary conduct. Here it will be explained that although section 2 of the Sherman Act and Article 82 of the EC Treaty seem to share several commonalities, many significant differences do exist regarding both the normative framework and the practical assessment of the cases. The second part will be specifically concerned with the analysis of American and European cases involving the intersection between intellectual property rights and antitrust law. The third and last part will comment on the economic significance of intellectual property rights, and thus on the proper weight they should be afforded in an antitrust analysis.