UNILATERAL REFUSALS TO SELL OR LICENSE INTELLECTUAL PROPERTY AND THE ANTITRUST DUTY TO DEAL Marina Laot INTRODUCTION Much has changed in the last twenty years in the antitrust approach to intellectual property.1 Prior to the 1980s, the predominant view of the antitrust and intellectual property laws was that they conflict because the former protects competition while the latter permits monopoly.2 Courts and academics alike considered intellectual property rights as exceptions to the antitrust law that must be narrowly construed.3 The notion that the two bodies of law are diametrically opposed has_ since given way to the perspective that they are complementary, not conflicting, because they share the common goal of promoting innovation and maximizing con sumer welfare.4 However, despite efforts to downplay tensions between t Professor of Law, Seton Hall University School of Law. E-mail:
[email protected]. I would like to thank the Cornell Journal of Law and Public Policy for inviting me to partici pate in this symposium, and the participants of the symposium for their insights. My thanks also go to Ahmed Bulbulia, Michael Risinger, Charles Sullivan, and Alfred Yen for their thoughts and comments; to Christina Donahue for her excellent research assistance; to Maja Basioli for her library assistance and for her invaluable help with internet searches; and to participants at the faculty colloquium at Albany Law School where I first outlined some of the ideas presented in this paper. 1 For discussion of the changing trend in this area, see'iames B. Kobak, Jr., Running the Gauntlet: Antitrust Intellectual Property Pitfalls on the Two Sides of the Atlantic, 64 ANTI TRUST L.J.