Interoperability as an ‘essential facility’ in the Microsoft case—encouraging competition or stifling innovation?

Abstract: The article analyses the approach adopted by the Commission and by the EU Courts to refusals to grant IP licences under Art.82 EC and illustrates the impact of the recent Microsoft judgment on the evolution of these standards. It will contend that the current interpretation
may not be entirely suitable to highly technological markets, such as the IT industry. Consequently, the article will suggest that due to the importance of encouraging future technical development through the promise of the rewards arising from transient market leadership, it might be desirable to 'backtrack' to the more restrained position emerging from the ECJ IMS Health and Bronner judgments.

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