Description
Bloomsbury Publishing PLC Refusals to License Intellectual Property: Testing the Limits of Law and Economics by Ian Eagles Louise Longdin
Economic analysis rarely features in intellectual property litigation. In competition cases by contrast the judgments of the highest courts are replete with references to economics. One might expect that refusals to license IP would generate the same symbiosis between law and economics when those refusals surface in competition proceedings. However courts and enforcement agencies faced with a unilateral refusal to license have tended to retreat into sketchily articulated black letter rules and presumptions which then have to be fenced off from the rest of competition law by economically irrelevant qualifications and distinctions based on private law categorisations of individual IP rights. This bypassing of case-by-case analysis in favour of traditional modes of legal reasoning is not entirely the fault of lawyers; economists have contributed to this state of affairs by urging judges and regulators to convert empirically undernourished theories about the proper role of IP in a market economy into rules of law and evidentiary presumptions which may bind future cases. How this came about and what it means for the future of effective global competition enforcement are the twin concerns of this book.