About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

105 Nw. L. Rev. Colloquy 1 (2010-2011)

handle is hein.journals/nulro105 and id is 1 raw text is: Copyright 2010 by Northwestern University School of Law Vol. 105 Northwestern University Law Review Colloquy THE RIDDLE UNDERLYING REFUSAL-TO-DEAL THEORY Michael Jacobs* and Alan Devlin** May a dominant firm refuse to share its intellectual property (IP) with its rivals? This question lies at the heart of a highly divisive, international debate concerning the proper application of the antitrust laws. In this short Essay, we consider a profound, yet previously unaddressed, incongruity un- derlying the controversy. Specifically, why is it that monopolists refuse to share their IP, even at monopoly prices? To resolve this issue, some have recommended compulsory licensing, which would require monopolists to license their IP in certain circumstances. This proposal, however, entails an inescapable contradiction, one rooted in the issue of monopolists' seeming- ly inexplicable refusal to share their IP. The policy tensions implicated by the compulsory licensing debate are straightforward, involving a tradeoff between short- and long-term consid- erations. Assuming that the monopolist being targeted has not committed a separate violation of the antitrust laws,1 the near-term virtues of compulsory licensing are two-fold. First, forced sharing will render the market more competitive in the short run. Second, by increasing access to the relevant IP, the law may accelerate cumulative innovation and invent-around. Both of these benefits seem reasonable, yet they portend a serious long-term cost: antitrust incursions into IP threaten to diminish incentives to invent. The tension between the long and short run moves the debate in a pre- dictable but inconclusive direction. Consider, for example, the differences between the U.S. and European approaches to compulsory licensing. Courts in the United States have ruled that monopolists may refuse for al- most any reason to license their IP to a rival, reasoning that the long-term harm to incentives counsels against compulsory licensing.2 Conversely, the Distinguished Research Professor, DePaul University College of Law; Dartmouth College, B.A., 1968; Yale Law School, J.D., 1971. Law Clerk to the Honorable Richard D. Cudahy, United States Court of Appeals for the Seventh Circuit; University College Dublin, B.B.L. (Int'l), 2004; University of Chicago, LL.M., 2005; Universi- ty of Chicago, J.S.D., 2006; Stanford Law School, J.D., 2007. 1 If the monopolist has infringed the competition laws through unrelated conduct, see, e.g., United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (link), compulsory licensing might be an appro- priate remedy. 2 See, e.g., Verizon Commc'ns. Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407-16 (2004) (link); In re Indep. Serv. Orgs. Antitrust Litig., 203 F.3d 1322, 1325-28 (Fed. Cir. 2000) (link); Image Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1215 (9th Cir. 1997) (link). http://www.law.northwestern.edu/lawreview/colloquy/2010/17/ 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most