Intellectual property and refusal to deal: ‘Ad Hoc’ versus ‘Categorical’ Balancing

The tension that exists between the goals pursued by antitrust and the intellectual property right laws reaches its peak when refusal to deal by a dominant firm holding an intellectual property right occurs. The paper argues that in such a case as this, a conflict arises between principles and goals neither of which is able to trump the other. It would therefore be necessary to resort to a balancing. The distinction between "ad hoc" and "categorical" balancing, as well as the distinction between balancing of effects and balancing of interests, are theoretically illustrated. The balancing proposed by the European Commission and the balancing mentioned by the Court of First Instance in the Microsoft case are examined. The paper maintains that the assessment of the abusive nature of the refusal implies a balancing not between effects (as in the test proposed by the Commission) but between interests which pertain to different groups of consumers (making the notions of consumer welfare and of consumer detriment constructed by the Commission and the Court on the implied premise that all the consumers can be treated as a single body, inappropriate). The paper also argues that a categorical balancing could ensure a better compromise between the interests of the different groups of consumers which come into conflict, rather than the compromise reached by the "ad hoc" balancing used by the Commission. A parameter for a categorical balancing is then proposed.