L'application de la théorie des facilités essentielles aux droits de propriété intellectuelle favorise-t-elle des stratégies opportunistes de la part des firmes ?

The Microsoft case judgements have highlighted some differences between American and European competition policies. The Essential Facilities Doctrine is a central point of these divergences. Indeed, while its implementation seems to be challenged by the US Supreme Court since Trinko, the European authorities tend to extend this doctrine to intangible assets. Such enforcement is not neutral from the incentives to innovate point of view. This conception appears likely to increase the degree of legal insecurity because of the relative difficulty to foresee judge's decisions. In this context, opportunistic companies could prefer compete the dominant firm by means of a strategic use of antitrust laws rather invest in R&D. After having shown the European specificities in matter of competition policies, we will analyze the strategic abuse of the EFD that the European framework seems to favour.