Two Bodies of Law Separated by a Common Mission: Unilateral Conduct by Dominant Firms at the IP/Antitrust Intersection in the EU and the US

Thus, in both the US and the EU, conduct by a firm enjoying market power can give rise to tensions between IP law and antitrust law. Antitrust law can reach: (i) a failure to license IPRs to competitors (refusal to license); (ii) the acquisition of IPRs through misleading representations to public authorities (patent fraud); (iii) the exploitation of regulatory procedures involving IPRs to erect barriers to exclude competitors (misuse of regulatory procedures); (iv) the failure to disclose IPRs that are essential to implementing a standard adopted by a standard-setting organisation (SSO) or to license those rights on fair, reasonable and non-discriminatory (FRAND) terms (deception of SSOs); and (v) licensing IPRs at unreasonable rates (excessive royalties).

This paper addresses treatment of these five instances of interaction between antitrust and IPRs under EU (Section B) and US law (Section C). It compares the different solutions in each jurisdiction and outlines factors that may account for them."