Two Bodies of Law Separated by a Common Mission: Unilateral Conduct by Dominant Firms at the IP/Antitrust Intersection in the EU and the US

Both antitrust law and intellectual property (IP) law seek to promote optimum prices, quantity and quality of goods and services. However, because these laws pursue their common objectives through different means, tensions may arise between them. This article looks at five instances of interaction between those two bodies of law in the EU (part I) and the US (part II): (1) the failure to license IPR to competitors (refusal to license); (2) the acquisition of IPRs through misleading representations to public authorities (patent fraud); (3) the exploitation of regulatory procedures involving IPRs to exclude competitors (misuse of regulatory procedures); (4) the failure to disclose IPRs that are essential to implementing a standard adopted by Standard Setting Organization (SSO) or to license those rights on fair, reasonable, and non-discriminatory (FRAND) terms (deception of SSOs); and (5) licensing IPRs at unreasonable rates (excessive royalties) . This article compares the different solutions devised in each jurisdiction and outlines factors that may account for them.