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EUROPEAN COMMISSION DG Competition - page 101 / 113

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No general obligation to license an IPR 238. There is no general obligation for the IPR holder to license the IPR, not even where the holder acquires a dominant position in the technology or product market. The very aim of the exclusive right is to prevent third parties from applying the IPR to produce and distribute products without the consent of the holder of the rights. This protection would be eroded if the holder of a successful IPR would be required to grant a licence to competitors from the moment the IPR or the product incorporating the IPR becomes dominant in the market. Imposing on the holder of the rights the obligation to grant to third parties a licence for the supply of products incorporating the IPR, even in return for a reasonable royalty, would lead to the holder being

deprived of the substance of the exclusive right.140

Obligation to license only in exceptional circumstances 239. The refusal to license an intellectual property therefore does not in itself constitute an abuse.141 Only under exceptional circumstances can the refusal to license an IPR be considered an abuse.142 For example, the refusal by a dominant company to license access to the IPR could be considered abusive when the five conditions described above are all fulfilled and,

furthermore, the refusal to grant a licence prevents the development of the market for which the

licence is an indispensable input, to the detriment of consumers. This may only be the case if the

undertaking which requests the licence does not intend to limit itself essentially to duplicating the goods or services already offered on this market by the owner of the IPR, but intends to

produce new goods or services not offered by the owner of the right and for which there is a potential consumer demand.143

License may be indispensable as basis for follow on innovation 240. A refusal to licence an IPR protected technology which is indispensable as a basis for follow-on innovation by competitors may be abusive even if the licence is not sought to directly incorporate the technology in clearly identifiable new goods and services. The refusal of

140 141 Case 238/87 Volvo, cited in footnote 129, paragraph 8. On the other hand, the mere fact that the refused input is a licence to a valid IPR protected by law is not in itself an objective justification. Case 238/87 Volvo, cited in footnote 129, paragraphs 8-9; Joined Cases C-241/91 P and C-242/P Magill, cited in footnote 58, paragraph 49; and Case C-418/01 IMS Health, cited in footnote 129, paragraph 34. Case C-418/01 IMS Health, cited in footnote 129, paragraph 49. 142 143

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