Does Aspen Skiing Apply to Intellectual Property Rights?

Abstract

The conventional wisdom has been that Aspen Skiing does not, or at least should not, apply to intellectual property rights (“IPR”). The FTC recently challenged that conventional wisdom in its amicus brief filed in Actelion Pharmaceuticals Ltd. v. Apotex Inc. when it relied on Aspen to contend that “refusing to sell to generic rivals may constitute exclusionary conduct” supporting a violation of Section 2 of the Sherman Act. Although the amicus brief was filed within the context of the Hatch-Waxman Act, the brief has potentially broader significance because it would apply Aspen Skiing to IPR without any modification to take into account the fact that the refusal to deal involved intellectual property. Contrary to this position, most courts have explicitly rejected the argument that a unilateral refusal to sell a patented product should be treated like any other refusal to deal by a monopolist, and have instead adopted modified versions of the Aspen Skiing rule that explicitly take into account the IPR involved. Other courts have refused entirely to apply Aspen Skiing to IPR on the grounds that “the general law regarding refusals to deal by a monopolist cannot logically be imported to the patent and copyright areas without seriously undermining the objectives of the intellectual property laws.”

Keywords: Aspen Skiing, refusal to license, Federal Trade Commission, pharmaceuticals