The slides presented on Monday's lunch talk (related to DG Comp's discussion paper on Article 82 and its impact on dynamically competitive industries) can be downloaded at the end of this post.
Amongst the many things to retain from the talk, the Discussion paper's interpretation of the IMS new product condition is extremely worrying. Under IMS, the exceptionnal circumstances under which a refusal to license an indispensable IP rights can be abusive (and thus forbidden) are the following:
“[..] (1) that refusal is preventing the emergence of a new product for which there is a potential consumers demand, (2) that it is unjustified and (3) such as to exclude any competition on a secondary market.” (paragraph 38 of the ECJ judgment);
Now, here's the Discussion Paper's interpretation of condition 1, i.e. the new product condition:
“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.” (see §240 of the Discussion Paper)
So basically, any would-be licensee can go to an IP owner and say: “look, I need you to give me a license to produce something... and you can't say no”. Slides 28 and 29 assess the drawbacks of this extensive interpretation. The paper by Ahlborn, Denicolo, Geradin and Padilla contains more on this issue at pp.49-52.