Intellectual Property, Antitrust, and Access to Essential Technologies

Authors

Joy Y. Xiang, Peking University School of Transnational Law

First Page

1101

Abstract

This Article explores whether and how we may leverage antitrust law to calibrate the exploitation of intellectual property (“IP”) rights—e.g., IP licensing—to facilitate needed access to essential technologies. The Article’s motivation is to help developing countries find an effective way to address their complaints that owners of IP-protected technologies refuse to license needed technologies or charge unfairly high prices. The Article concludes that leveraging antitrust law unilaterally to address these typical challenges developing countries experience in accessing essential technologies may be more effective and efficient than attempting to change the IP regime. The IP regime is governed by negotiated and established multilateral instruments and is likely helpful in promoting international technology transfer and domestic technology innovation.

In answering the question of whether we may leverage antitrust law to improve access to essential technologies, the Article explores the conceptual linkages among IP, antitrust law, and access to essential technologies, examining the diverse approaches toward the IP–antitrust interface by multilateral, regional, bilateral, and jurisdictional instruments. In answering the question of how we may do so, the Article suggests a possible approach containing four main aspects. In doing so, the Article presents reference points for implementing this approach by comparing courses taken by three major antitrust regimes—the United States, the European Union, and China—toward controversial topics such as refusal to license, the essential facilities doctrine, and excessive pricing. The Article then discusses the necessary balancing considerations for implementing this approach. It also considers the barriers developing countries need to overcome for the implementation.

Recommended Citation

Joy Y. Xiang, Intellectual Property, Antitrust, and Access to Essential Technologies, 26 Lewis & Clark L. Rev. 1101 (2023).
Available at: https://lawcommons.lclark.edu/lclr/vol26/iss4/4