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Gallego, Beatriz Conde --- "Unilateral Refusal to License Indispensable Intellectual Property Rights – US and EU Approaches" [2008] ELECD 251; in Drexl, Josef (ed), "Research Handbook on Intellectual Property and Competition Law" (Edward Elgar Publishing, 2008)

Book Title: Research Handbook on Intellectual Property and Competition Law

Editor(s): Drexl, Josef

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420475

Section: Chapter 9

Section Title: Unilateral Refusal to License Indispensable Intellectual Property Rights – US and EU Approaches

Author(s): Gallego, Beatriz Conde

Number of pages: 24

Extract:

9 Unilateral refusal to license indispensable
intellectual property rights ­ US and EU
approaches
Beatriz Conde Gallego



1 Introduction
The question of whether, and if so, under which conditions the owner of an
intellectual property right (hereafter `IPR') can be compelled as a matter of
competition law to grant a licence to a third party (which in most cases will be
a competitor) touches the interface problem at its very heart. As a matter of
principle, nobody would contest that the owner of an IPR may lawfully
exclude third parties from making, using or selling the IP-protected product or
service. Moreover, it is also undisputed that the right of exclusion inherent to
IPRs includes the right to refuse to grant a licence and that this right may be
limited only in certain (exceptional) circumstances.1 Consensus disappears,
however, when it comes to determining these circumstances. Not only does a
gulf exist between the approaches followed on both sides of the Atlantic.2


1 See for European law Case 238/87, Volvo, [1988] ECR 6211, para. 8; Joined
Cases C-241/91P and C-242/91P, RTE and ITP v. Commission (`Magill'), [1995] ECR
I-743, para. 49; Case C-418/01, IMS Health[2004] EUECJ C41801; , [2004] ECR I-5039, para. 34. For the US
see Hartford-Empire Co. v. United States, 323 U.S. 386, 432 (1945) (holding that the
patent owner `has no obligation either to use [the patent] or to grant its use to others');
Stewart v. Abend, 495 US ...