When Do Refusals to License Patents Violate the Antitrust Laws?
As a threshold matter, antitrust liability for refusal to assist competitors–whether by licensing patents or otherwise–is a rare exception to the ordinary rules of antitrust. As expressed in United States v. Colgate & Co., the Sherman Act generally “does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise [its] own independent discretion as to parties with whom [it] will deal.”(87) Although this right to refuse to deal is not unqualified,(88) the Supreme Court stated in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP that it has “been very cautious in recognizing such exceptions, because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying anticompetitive conduct by a single firm.”(89) The Trinko Court articulated three reasons why requiring firms to “share the source of their advantage” with rivals is “in some tension with the underlying purpose of an
