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Essential facilities doctrine and molecular manufacturing

Friday, March 2, 2007

This is just a quick, general and preliminary comment on the development of the doctrine of essential facilities. After reading some papers (some of them also available in the ssrn here), I have a feeling that both IP and Competition Lawyers are in favour of a more restrictive application of the "essential facilities" doctrine to intellectual property.

Essential facilities has been heaviliy criticized. Some lawyers considered that when there is a competition case involving IP, a new approach must be created as essential facilities deal primarily with tangible property.

My impression is, however, that these "new approaches" attempts to put a more strict treshold when competition law inetervenes intellectual property. I wonder if in the future, when molecular manufacturing is available -- a stricter approach would still be relevant. In my opinion, when more and more tangible goods are transformable into information, there will be more demand towards lowering the standards of IP protection.

It would be interesting to see how competition law doctrines operates in the age of molecular manufacturing. The tendency towards differentiating between competition law test applicable to tangible property and competition law test applicable to intangible property is something positive. However, the trends that everything is transformable into information these days must also be put into consideration. Raising the threshold of IP protection in a world where tangible goods are nothing but information may seriously jeoperdize the future economy.