La innovación subsiguiente como límite económico para la valoración del comportamiento de abuso de posición dominante relacionado con las negativas a contratar o licenciar

One of the most relevant issues that competition Law has to confront in the complex field of the relation between competition and innovation is the assessment of dynamic efficiencies, either on the ex ante assessment of the possible harms that a competition authority could do to the market access conditions for investments and innovation process, as well as the benefits that could be expected by the authority intervention to allow better conditions of access to innovators. In this paper we studied, from a consumer well-being perspective and with a special reference to European case Law, the ability of antitrust law to intervene on intellectual property cases when dominant firm behaviors is willing to exclude competition by substitution, especially when she is impairing cumulative innovation. And we exceptionally deal with competition by imitation, particularly when it is the unique solution to participate in a technological market which requires an imitation on the bottom to allow competitors to be able to develop new and better products that consumers are theoretically willing to demand. In this respect, competition by imitation plays a roll closer to competition by substitution. In the last case, we recognize the importance of the standards in the market than can be used as a tool to achieve exclusionary objectives or that can contribute to the innovation process as a form of essential resources (a manner of essential facility build on intellectual property resource) that allows competition on technologic industries, where innovation and differentiation are the optimal path to achieve market share, stability and economic growth.