Dealing in Intellectual Property: IP Justifications and Defenses in Digital Markets Cases

Technology companies have not been very successful in relying on intellectual property justifications and defenses to fight allegations of anticompetitive licensing and dealing practices that harm rivals.  U.S. courts and juries have rejected or only partially credited intellectual property justifications and freedom to deal “defenses.” In addition, the U.S. antitrust agencies have been fierce advocates against expansion of the refusals to deal doctrine in technology cases.  This article w