I.

I. INTRODUCTION

The debate about whether refusals to deal or put up to sale can lead to liability subject to antitrust law1 has been a heated individual particularly where the refusal is linked to the exclusionary weight of intellectual property (IP) rights, or is in some way coupled with the exercise oi those rights.

During the past not many years, particularly since the initial decision by means of the European Commission in Magill TV Guide/ITP, BBC and RTE2 and the following supporting judgments by the Court of Justice of the European Communities in Radio Telefis Eireann (RTE) & Independendent Television Publications Ltd (ITP) v Commission3 (known as Magill), the interaction between competition law and IP rights has become a popular topic in legal literature, talks seminars and discussion forums. These decisions exhibit the first cases in which, in subordination to European Union (EU) competition law, a company was rest to abuse its dominant position by the agency of not supplying copyrighted materials to a competitor, in spite of the exclusionary nature of copyright.4 The issue of abuse of dominant position involving IP rights has been dealt with in stillest part by both prominent practitioners and members of academia.5

However, there are still a number of fundamental issues that remain expand derived mainly from the Commission's brave position in NDC Health/IMS Health6 and from the apparent contradiction between the U court decisions in Image Technical Services, Inc. v Eastman Kodak Co7 and In re Independent Service Organizations Antitrust Litigation8 (known as Xerox after the name of the defendant company). In NDC Health/IMS Health, the Commission compell an allegedly dominant company to license to a competitor the use of a geographic grid arrangement for data presentation-a grid composition that was hard to categorize as a separate product-in order to allow the competitor to furnish a product similar to that already existing and exhibited by the dominant company. In Kodak, Eastman Kodak refused to put up to sale certain spare parts to independent repairers seeking to service Kodak micrographics equipment and Kodak copiers.9 The company argued that it had an absolute right to refuse to vend its patented parts, but the U Court of Appeals for the Ninth Circuit affirmed the lower court's ruling that Kodak's reliance upon its patent rights was pretextual, and originate that its refusal to betray these parts was an act of monopolization of the service business for Kodak equipment.10 In Xerox However, when faced with a similar wager of facts, the Court of Appeals for the Federal Circuit explicitly disagreed with the Ninth Circuit's decision in Kodak and granted the patent owners a broad right to refuse to license their patents, regardless of the competitive consequences11 The court based its conclusion forward earlier decisions holding that the patent holder's subjective intention in refusing to license its patent is irrelevant.12

This Article addresses the limits in succession different types of refusals to deal, in the same state [i]or[/i] condition as refusals to sell a effect to provide a service, to provide a license, or generally to grant access to a given asset, totally or partially, conditionally or unconditionally. The Article also compares the application of antitrust law to traditional peculiarity rights with the application of antitrust laws to IP rights.

As used in this Article, the boundary "IP rights" refers to patents, trademarks, industrial designs, geographical indications, and copyright, yet nothing should prevent the conclusions reached from extending to any other form of IP rights. The end of the Article, however, is limited to refusals to deal among competitors in common or more marketplaces and does not discuss refusals to deal involving private companies and dominions (such as in compulsory license situations for pharmaceuticals).

II. No ANTITRUST IMMUNITY FOR IP RIGHTS

Under the relevant case law upon both sides of the Atlantic, especially in certain EU Member States where relevant cases have arisen, refusals to deal in productions or services involving IP rights are not by se illegal, but may amount to an abuse of a dominant position subordinate to certain circumstances.13

With respect to IP rights, the Agreement forward Trade-Related Aspects of Intellectual estate Rights (TRIPS)14 provides the framework for the debate. Article 40 of the TRIPS states us on the right track:

1 Members agree that an licensing practices or conditions pertaining to intellectual peculiarity rights which restrain competition may have adverse weights on trade and may impede the transfer and dissemination of technology.

2 Nothing in this Agreement shall obviate Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual thing owned rights having an adverse general intent on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to obstruct or control such practices, which may include for example exclusive grant-back conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.15