AGAINST IMMUNITY FOR UNILATERAL REFUSALS TO DEAL IN INTELLECTUAL PROPERTY: WHY ANTITRUST LAW SHOULD NOT DISTINGUISH BETWEEN IP AND OTHER PROPERTY RIGHTS

摘要

The antitrust unilateral refusal to deal doctrine raises vexing issues as regards the preservation of ex ante incentives to invest and the scope of the right to exclude from one's property. The Federal Circuit recently chose to give intellectual property owners immunity for unilaterally refusing to deal, thereby creating a distinction between intellectual property and other property rights for the application of antitrust law. This Article argues against the immunity rule for unilateral refusals to deal in intellectual property and considers whether the rule of reason should be applied in all unilateral refusal to deal cases, regardless of the type of property involved. The immunity rule overlooks the notion that intellectual property laws aim at putting intangible and tangible property on equal footing and distorts the application of antitrust principles by refusing to inquire into the intent for refusing to deal when intellectual property is at issue. In addition, application of the immunity rule causes important under-deterrence problems. This Article argues in favor of the application of the rule of reason and contends that, although exercise of intellectual property rights is a presumptively valid business justification for refusing to deal, plaintiffs should be able to rebut this presumption by undermining the causal link between the intellectual property and the refusal. This requires an inquiry into intent that is consistent with antitrust principles and preserves legitimate intellectual property claims.