A comparative analysis between the EU and the US on refusal to license under anticompetition policies

Sammanfattning: This paper makes a comparative analysis on to the legality of unilateral refusal to deal IPR as a dominant undertaking in EU and US. In particular the paper examines the circumstances in which the judicial bodies in EU and United States will be willing to order a mandatory license of IPR under the relevant anticompetition/antitrust policies, such as article 102 TFEU under EU and the Sherman Act section 2 in the US. As a starting point the paper explains the default position of whether there is a general obligation to deal for dominant undertakings. Having concluded that there is not, the paper then goes into explaining the specific legal test implemented by the judiciary in Europe to determine when extraordinary circumstances that would justify such a compulsory order might exist. The paper then goes on to examine if there is a requisite test in the US that determines where the judiciary would be willing to order a compulsory license under antitrust policies. The paper subsequently highlights the key differences in the judiciary approach between US and EU Courts, before the paper goes on to comment which judiciary has the better approach for the benefit of consumer welfare.