Abstract
When the owners of intellectual property (IP) refuse to license or sell IP-product, does the refusal violate antitrust law? European courts apply the essential facility doctrine to determine whether or not the refusal to license by IP owners violates competitive law. Comparatively, the U.S. courts have not applied the essential facility doctrine to deal with the refusal-to-deal case. In the past, there were very few cases in the U.S. that courts dealt with IP owners refuse to license. Generally speaking, a company who refuses to deal or license is not regulated by antitrust law. But the U.S. Supreme Court in Aspen Skiing case (1985) established the antitrust deal obligation, and the Court emphasized that the antitrust law is applicable to any methods with the aim to monopolize the interstates trade. It emphasized whether the company terminates the volunteer dealing in the past and whether it has anticompetitive intent. This paper considers important cases and tries to analyze common elements of the refusal to deal doctrine in the U.S. It also compares the refusal-to-deal doctrine with essential facility doctrine and points out the differences between them. Finally and most importantly, two hot cases are studied under the antitrust refusal to deal doctrine. The first is Qualcomm, a company that broke its FRAND promise and triggered sanctions by several competitive-law authorities around the world, including Taiwan , and the second is the Car Manufacturers in EU, another group that broke a no-suit promise and brought suit in Taiwan.
Digital Media
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