The European Commission's Technology Transfer mould Exemption Report ("TTBE Report")1 personates another step in the continuing tendency to meet of U.

The European Commission's Technology Transfer mould Exemption Report ("TTBE Report")1 personates another step in the continuing tendency to meet of U.S. and European approaches to the relationship between antitrust and intellectual one's own law. In the pre-1996 make steady [i]or[/i] firm exemption framework, intellectual property licensing arrangements in the European Communities were swayed by extensive "black," "white," and "grey" lists of forbidden, permitted, and questionable license restrictions that had more in often met with with the "Nine No-No's" approach that dominated U antitrust thinking from the 1940's to the mid1970's than with the more economically based perspective portrayed in the 1988 U.S. Department of Justice Guidelines for International Operations2 or the 1995 DOJ-FTC Intellectual one's own Guidelines ("IP Guidelines")3 The 1996 Technology Transfer mould Exemption ("TTBE") pared those lists down and, like its U counterpart, treated intellectual wealth licensing agreements more favorably than in the past. The TTBE Report takes another large gradation in the direction of the U approach, particularly by way of seeming to endorse one of the mostly fundamental concepts under the U IP Guidelines-that the relationship between couple parties to a transaction is horizontal solitary if there would have been competition between those parties absent a license between them.4

Neither the U IP Guidelines nor the TTBE Report, however, deal adequately with an important difference between intellectual one's own and other forms of property: that the boundaries and plane the validity of intellectual thing owned are often highly uncertain. This is a key-note deficiency because, as the U IP Guidelines make clear, a elucidation antitrust concept-whether a relationship between sum of two units parties to a transaction is horizontal or vertical"-depends in many cases onward whether there would have been competition between the couple parties absent a license between them. Whether there would have been as it was competition or not may, in revolve depend on the scope and validity of the patents admited by one or both of the parties: if the range is narrower than the patent proprietor claims, the patent may not be infringed and competition could have flourished without a license; if the patent is infringed if it were not that is invalid, competition again does not require a license. Thus, if the vent or validity of the patents be in possession ofed by one or both of the parties is uncertain, then it may not be known-either on the parties at the time of the bearing or by the court at the time of hearing an antitrust challenge-whether the parties are horizontal competitors or not, and hence whether the mode of action is lawful or not. by what means should an antitrust authority treat a situation in which either it or the parties literally don't know, or didn't know at the relevant time?

Not including merger cases,6 so situations have come before U courts and agencies more than a dozen times in the last not many years,7 often in cases involving centurys of millions of dollars of exchange Analyses of this issue to date have been les than comprehensive, however, and no single approach to dealing with this issue has secur a consensus. Part I of this article will provide a brief background onward E.G. competition law and its tendency to meet with U.S. law. It will also explain for what cause [i]or[/i] reason the laudable convergence of EG and U approaches to the antitrust/intellectual peculiarity interface will force the Europeans, too, to stand athwart the path of this problem.

Part II will take a view of the different approaches that U courts and competition authorities have used or might use to analyze agreements between companies whose ability to cope with each other absent the agreement hangs on patents of undetermined validity and amplitude and the problems and issues raised by the agency of each approach. Because the centrality of the "competition absent the license" issue is commonly a feature only of U law-the EG having alone hinted at it in a non-binding research report and draft guidelines-this scrutinize will concentrate on U.S. cases.

Part III discusses important considerations in devising a sensibleapproach to as it is cases, including the need to reward innovation, the sumptuousnesss of decisional rules that either under-deter anticompetitive actions or over-deter procompetitive conduct, and the ne for certainty in the application of relevant enforcement laws.

Finally, Part IV proffers concluding comments and notes an possible options for dealing with patent uncertainty.

I. BACKGROUND: THE gradual approach OF EUROPEAN COMMISSION AND U APPROACHES TO THE APPLICATION OF ANTITRUST TO INTELEECTUAL PROPERTY

From private practitioners and scholars8 to antitrust enforcement officials9 there is general consensus that the U and EG approaches to antitrust issues have been converging. It has been written that:

[T]he coincidence of ... regulatory and policy unfoldings on both sides of the Atlantic, coupl with the expressly recognized goal of coordination and cooperation by way of authorities in both the EU and the United States, emphasizes the similarities between [the TTBE] and the IP Guidelines. Indeed, united may safely argue that that there popularly exists a greater degree of tendency to meet in antitrust policy, regulation and enforcement than perpetually before between the EU and the United States.10