The Interface between Intellectual Property Rights and Antitrust law: An Overview of the Microsoft Proceedings in the US and EU.

Abstract: Some very significant developments in antitrust law have occurred in the last decade. Many have involved a software company that is enabling the creation of this document. Of course, I am referring to the Microsoft Corporation. Both the case, which ended in a settlement agreement in the US, and the case that is under appeal in the EU will have solemn implications for the future of technology, innovation and the free market economy. In this work, I have provided an overview of both cases and analyzed the specific realm of where intellectual property rights and competition law converge. I first reviewed the situations where a refusal to supply a customer can lead to an infringement of Article 82 EC. Followed by an example of how such a refusal to deal can lead to an antitrust infringement under Article 82's United States counterpart, §2 of the Sherman Act. Further review focuses on situations where exceptional circumstances, combined with a refusal to license, will lead to a compulsory license. The ideas of exceptional circumstances and indispensable material led to a discussion of the essential facility doctrine and its place in EU and US juris prudence. This area was then summarized with the latest cases in both the US and EU that employ an essential facility theory. The primer on refusals to deal and essential facilities is followed by a thorough breakdown of the Appellate decision of the US antitrust litigation against Microsoft. Their findings of exclusionary and anticompetitive conduct and lack of evidence for attempted monopolization lay the groundwork for the eventual Commission decision. The court's discussion of the appropriate test to determine anticompetitive tying of an integrated product leads to the ruling that it should be analyzed under a rule of reason analysis. This work then naturally leads into the recent Commission decision issued against Microsoft. An overview of the decision is presented, attempting to reduce the 301-page decision into a concise and easily readable summary. Whether that was successfully accomplished or not, remains to be seen. The final analysis in this piece focuses on two separate issues. Firstly, a brief comparative analysis is put forth exploring some of the potential considerations for the results of each respective case. Secondly, the recent IMS judgment, enumerating conditions which could lead to a compulsory license, is compared to the Commission's decision against Microsoft, which orders Microsoft to share interface information.