In such sectors, intellectual property protections, including patents and trade secrets, can be essential to allow firms to recoup their R&D investments and maintain competitive advantages (Aguirre, 2024[42]). Licensing refers to the legal process by which the owner of IP rights grants permission to another party to use, produce, or commercialise the protected invention, work, or technology under agreed terms and conditions. Licensing is an important instrument for diffusing innovation, for allowing innovators to be rewarded for their efforts, and to promote co-operation and follow-on innovation during IP rights’ period of exclusivity. However, licensing agreements can also have anticompetitive effects, such as anticompetitive foreclosure (OECD, 2019[74]).
Firms with leading technological positions do not necessarily have to licence their technology to other suppliers but may do so for strategic reasons, for example generating additional revenue without taking on manufacturing risk. In some situations, the refusal to licence IP can infringe competition law. This is typically only under exceptional circumstances where a provider is in a dominant position and the IP is an essential input in another market. For example, there was previously a case against Microsoft for refusing to licence the specifications required to ensure interoperability of Windows to manufacturers of competitor server operating systems (European Union, 2007[75]). More recently there have been reported investigations into the licencing terms of the Microsoft cloud (Godoy, 2024[76]) (Reuters, 2025[77]), as well as complaints reportedly being raised by Qualcomm (a chip maker) about ARM’s (Chip IP developer) licensing model.1
There are broadly two types of licenses in the sector (Business Software Allliance, 2005[78]):
proprietary or commercial licenses - which restrict usage to specific terms often involving fees and limited redistribution
open-source licences – which aim to promote collaboration and innovation by allowing free use and modification.
The use of open-source licences has increasingly been used as a strategic tool by companies seeking to overcome the ecosystem advantages that a technology first mover has gained (see, for example, (Klotz, 2025[79])). This strategy encourages other players in the sector to contribute to systems and technologies around an open-source system which is not under proprietary control helping to reduce potential ecosystem barriers to entry and expansion.
Licensing can raise challenges for competition authorities in some circumstances, and they will need to carefully balance the need to protect intellectual property rights and ensure innovation and investment are not discouraged with the need to prevent dominant firms from leveraging the technology to exclude rivals from other markets. In doing so authorities may need to consider the likelihood to which rivals would be able to leverage open-source technologies to develop alternative solutions.
Beyond the complex interaction of intellectual property and competition, markets based on high levels of innovation may face other competition issues including high concentration and barriers to entry which are discussed further below.