This article is based on the twofold premise that (a) refusal to supply cases such as Commercial Solvents and later ``essential facility’’ cases belong to the same line of case-law, meaning that a ``first-time refusal’’ and the termination of an existing supply relationship should be treated under the same test; and (b) ECJ judgments such as Magill and IMS suggest that plaintiffs have to meet a stricter test in refusal to license cases than in cases involving a refusal to supply tangible products or to give access to a tangible facility. On this basis, I argue that it is unwise to treat refusal to license cases and refusal to supply cases under different tests. As part of the analysis, I confront the conventional view that a ``duty to license’’ necessarily has a negative impact on innovation. I provide several arguments to the effect that (a) the defendant’s innovation incentives are unlikely to be significantly affected by a legal rule on the duty to license; (b) industry-wide innovation may actually benefit from such a rule; and (c) in any event, one cannot assume that dynamic efficiency considerations always trump immediate gains in static efficiency
World Competition