The interface between intellectual property and competition law: Is the refusal of a patentee to license anticompetitive?

Koleva, F.
February 2010


The purpose of the patent system is to provide incentives for innovations, and therefore for competition, through the grant of property rights upon the creative inventions. The aim of antitrust law, on the other hand, is to guarantee the competition, and in this way innovations, by monitoring the behaviour of the competitors and not allowing restrictive practices and abuse of market power. Therefore the two systems share basically the same purpose – to keep markets innovative and competitive, although they use different tools to achieve this.

At the same time, their differing approaches may cause tension in a short-run perspective, as far as the grant of a property right on an invention in fact restricts the competition for the term of protection, creating incentives for competition in the long run. One of the controversial issues in this respect is if the patentee’s refusal to license his invention is anticompetitive. The view points are highly differing, from the one that they opportunity to exclude is the very essence of the property right and therefore should be excluded from antitrust scrutiny, to the other that the patent right is a monopoly and therefore should be object to the same level of scrutiny as every other monopoly. The purpose of the paper is to try to find the answer, as well as if there is a way to balance the two systems’ approaches in this respect.