Unilateral Refusals to License in the U.S.

Document Type

Article

Publication Date

7-14-2008

Abstract

Where it applies, the essential facility doctrine requires a monopolist to share its "essential facility." Since the only qualifying exclusionary practice is the refusal to share the facility itself, the doctrine comes about as close as antitrust ever does to condemning "no fault" monopolization. There is no independent justification for an essential facility doctrine separate and apart from general Section 2 doctrine governing the vertically integrated monopolist's refusal to deal. In its Trinko decision the Supreme Court placed that doctrine about where it should be. The Court did not categorically reject all unilateral refusal to deal claims, but it placed very strict limits on the doctrine's use, which this paper explores.

Keywords

antitrust, monopoly, sherman Act, Essential Facility, vertical integration

Publication Title

Journal of Competition Law & Economics

DOI

https://doi.org/10.1093/joclec/nhl002

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