A Study of Antitrust Violations Regarding Unilateral Refusals to License Standard Essential Patents: Pivoting on Essential Facilities Doctrine and Patent Misuse
2019
Hochschulschrift
Zugriff:
107
Unilateral refusals to license intellectual property (“IP”) present one of the most complex and thorniest issues in antitrust context; Qualcomm’s worldwide scheme for its licensing standard essential patents (“SEPs”), which was confronted by competition agencies over several jurisdictions, specifically depicts such an issue, further leading to what this article aims to delve into: “whether” and “when” a unilateral refusal to license SEPs violates antitrust laws? While recognitions and applications of essential facilities doctrine to impose a general antitrust duty to deal were not uncommonly seen, empirical cases in the US saw a gradual negative treatment, therefore makes the doctrine worth a discussion in this article. As to the intertwined applications of IP laws and antitrust laws invoked by unilateral refusals to license, the US federal circuits had promulgated several approaches and that no coherent view was reached thus far; accordingly, the threshold question of when antitrust laws can interfere when IP holders are exercising their statutory right to exclude is to be tackled with in this article. This article attempts to define the scope of an IP holder’s rights with respect to patent misuse doctrine, and distinguishes refusals to license into two types: selective refusals that discriminate licensees and pure refusals. This article suggests the former to be recognized as a form of patent misuse. This article further proposes a Two-Tiered Approach to determine if a unilateral refusal to license constitutes an antitrust violation by examining: firstly, if there is evidence of IP misuse, and secondly, if the IP at issue as an essential facility can be found. In addition, this article seeks to infer potential influences of the US Supreme Court case Trinko on refusals to license cases and to summarize the US courts’ current view on the issue by conducting empirical quantitative analyses as to post-Trinko federal courts’ refusals to license decisions. When it comes to unilateral refusals involving SEPs as was seen in the recent Qualcomm case, issues including the relation between SEPs and essential facilities, the definition of relevant markets participated by SEPs holders, and the determination of market power arise. Along with analyses regarding these issues, this article makes further review and commentaries on both the US district court’s denial of Qualcomm’s motion to dismiss and Taiwan-FTC’s Qualcomm case decision, and examines Qualcomm’s licensing scheme by applying the proposed Two-Tiered Approach.
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A Study of Antitrust Violations Regarding Unilateral Refusals to License Standard Essential Patents: Pivoting on Essential Facilities Doctrine and Patent Misuse
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Autor/in / Beteiligte Person: | Lee, Kang-Hao ; 李康豪 |
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Veröffentlichung: | 2019 |
Medientyp: | Hochschulschrift |
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