O direito antitruste e o direito da propriedade intelectual: a ilicitude concorrencial da conduta unilateral excludente

Abstract

This dissertation aims an analysis of cases in which unilateral exclusionary conducts involving intellectual property rights may configure an anticompetitive practice in accordance with the Law No. 12.529/11. In the past decades, the theme has been increasingly frequent in Antitrust and, in Brazil, the first cases of Antitrust control over such practice have been emerging. The unlawfulness of the exclusion of competitors in a certain market, due to intellectual property rights, may be not simply determined. In addition to broad rules, a characteristic of Antitrust, another challenge is the potential implications of a mistaken decision, which may jeopardize the economic and social development, a scope constitutionally guaranteed in Brazil. As a result, the proposed research passes through two successive paths. The first one lies in the study of the possibility on the Brazilian antitrust rules applicability on conducts practiced by intellectual property rights holders. The second path, once accepted such possibility of antitrust control over intellectual property, refers to a research on which criteria may support the Public Administration to verify whether the exclusionary conduct is unlawful or not. With an aim to carry out the research, it will be developed a study in a theoretical basis and an analysis of the case-law in USA, in the European Union and in Brazil, being identified, by the end of this paper, which factors have been considered by antitrust authorities, as well as challenges emerging from the issue. The dissertation presents, as a doctrinaire base, the current understanding of the main institutions related to the matter, as the constitutional and infraconstitutional objectives of the Antitrust Law in Brazil, having adopted as a theoretical framework the position which recognizes the importance of intellectual property for economic and social development.