지적재산권의 라이센스 거절에 대한 미국과 유럽연합의 경쟁법 규제- 필수설비이론의 적용에 대한 정책 비교를 중심으로 -

Contractual liberty of enterprises means freedom to select one’s own transacting partners and to bargain on one’s own terms without undue government’s interference. However, this freedom is not complete because it can be restricted, within the government’s police power, to prevent harm to the public. For example, the government can restrict a private entity’s unilateral refusal to deal. Under Article 2 of the Sherman Act of the U.S., unilateral refusals to deal are illegal only when they constitute monopolization or attempted monopolization. That is, the plaintiff must show that the defendant is a monopolist, and that his refusal to deal is an anticompetitive exclusionary practice. Nevertheless, courts and scholars have long proposed colorful tests and doctrines, because the Sherman Act’s requirements on monopolization and an attempt to monopolize give only vague answers for the standard of illegality on unilateral refusals to deal. One of these tests and doctrines is ‘the essential facility doctrine.’ The essential facility doctrine requires a monopolist or a dominant firm to provide access to a facility that he or she controls and that is deemed necessary for effective competition. Although this doctrine focuses mainly on a physical facility, it could apply to other types of property, including intangibles such as intellectual property. This article discusses the essential facility doctrine, as it has been applied, critiqued by U.S. and EU courts, focusing on possible applications to intellectual properties. This article also analyzes some differences between the U.S. and the EU approaches in applying the essential facility doctrine to unilateral refusals to license intellectual properties from an economic perspective.