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14 Berkeley Tech. L.J. 323 (1999)
Intergraph Corp. v. Intel Corp.

handle is hein.journals/berktech14 and id is 331 raw text is: SHERMAN ACT VIOLATIONS: ESSENTIAL FACILITIES DOCTRINE INTERGRAPH CORP. V. INTEL CORP. By W. Greg Pap ak The recent decision by the U.S. District Court for the Northern District of Alabama in Intergraph Corp. v. Intel Corp. ' highlights the ongoing ten- sion between intellectual property (IP) rights and antitrust law. The dis- pute arose when the parties could not agree to a cross-license that Intel had sought in response to litigation threats from Intergraph for patent in- fringement. Intel replied by cutting off its customer's--Intergraph's-- supply of advanced chip samples and technical information for its patented microprocessors. The district court granted a preliminary injunction that required Intel to supply Intergraph with these materials, finding that they constituted essential facilities. Intel has undertaken an aggressive appeal of the decision, arguing that the injunction amounts to compulsory licensing. The case marks the first time that a computer-related product has been held as an essential facility. Essential facilities doctrine in the Intergraph context adds confusion to the IP-antitrust interface with regard to issues such as refusals to license and access to de facto standards. I argue that the court's use of essential facilities ultimately fails because it overextends the bounds of a narrowly confined doctrine. An analysis of the doctrine's his- tory reveals that its application here does not meet the requirements of a Sherman Act section 2 essential facilities claim. Use of the doctrine also excessively impacts the rights granted to Intel in its patents. Finally, the doctrine, as applied to this case, has the practical effect of maintaining an entity's market power in its proprietary standard in a market that might be better served with open standards and increased competition. I. THE FACTUAL BACKGROUND TO THE DISPUTE A. Intel--A Producer of High Performance Microprocessors Intel Corporation is the world's largest designer, manufacturer, and supplier of high performance microprocessors used in desktop computers, laptops, servers, and workstations.2 Intel captured eighty-eight percent of © 1999 Berkeley Technology Law Journal & Berkeley Center for Law and Technology. 1. 3 F. Supp. 2d 1255 (N.D. Ala. 1998). 2. See id. at 1259. Microprocessors, or central processing units (CPUs) control the central processing of data, as well as other integral systems, in personal computers. See id. at 1259. Many of the following representations are based on the district court's

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