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Academic Articles Awards > Asian Antitrust

Essential Facilities Doctrine and its application in Intellectual Property Space under China’s Anti-Monopoly Law

Yong Huang, Elizabeth Xiao-Ru Wang, and Roger Xin Zhang, 22 George Mason Law Review 1103-1126, 2015

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This Article explores the development of the essential facilities doctrine and its potential applicability to IPR matters. It begins by explaining the history of, and the economic principles underlying, the essential facilities doctrine, which has typically been applied—and, even then, only in extreme cases—in matters involving refusals to deal in traditional markets for goods and services, rather than in markets for intellectual property. This discussion highlights the impact of government policy on dynamic incentives to invest and innovate, which are the common thread between IPR policy and competition policy. This Article also summarizes the key cour cases in the United States involving the essential facilities doctrine. After explaining the doctrine’s foundations, this Article turns to the doctrine’s application to IPRs, beginning with the relevant economic characteristics of IPRs that distinguish them from other goods or services normally traded in the marketplace. Finally, this Article closes its analysis with an evaluation of the unique challenges imposed by China’s economic transition onto the balance of its IPR policy and competition policy.

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