Tuesday, May 20, 2008
Posted by D. Daniel Sokol
ABSTRACT: According to some courts and commentators, the essential facilities doctrine sometimes requires a monopolist to provide access to a facility that the monopolist controls and that is deemed necessary for effective competition. Although sometimes the facility is, literally, a physical facility, in principle the doctrine could apply to other types of property or inputs as well, including intangibles such as intellectual property. And while the U.S. Supreme Court has never expressly recognized the doctrine, even casting doubt in recent years on the doctrine's viability under U.S. law, the European Communities have applied a version of the doctrine in several cases, including most recently against Microsoft. This book chapter, from a forthcoming book titled Antitrust Law and Economics (Keith N. Hylton ed., Edward Elgar Publishing 2008), provides a short overview of the essential facilities doctrine as it has evolved in the relevant caselaw and commentary. The chapter presents the leading arguments for and against the general recognition of an essential facilities doctrine; discusses some of the ongoing controversies over the doctrine's specific contours (for example, the necessity of proving the existence of two vertically-related markets); and highlights the doctrine's potential tension with intellectual property law.