ASCOLA Competition Law series
Edited by Josef Drexl and Vicente Bagnoli
Chapter 11: Intellectual property rights: from state-initiated restraints of competition to state-initiated competition
This chapter addresses two questions about US intellectual property rights as state-initiated restraints of competition. First, what explains the reversal of fortunes, the decline of antitrust, the elevation of IPRs to primary importance, and, in consequence, a weakened commitment to free competition? Second, how can the benefits of free competition be re-introduced into the policy debates over IPRs, debates concerning the public interests in advancing economic growth and promoting fair distribution of its benefits? After discussing the decline of antitrust, this chapter offers a surprising source for re-introducing competition policy and, with it, an entirely new approach to resolving a long-standing tension between IPRs and antitrust at its breaking point – the deep conflict between a patent holder’s fundamental right to exclude and the antitrust prohibition against a monopolist’s refusal to deal. Intellectual property ownership has become a critical issue in current debates concerning not only national competition policies but also international trade and development, whether about the availability of generic pharmaceuticals, the impact of TRIPS on developing countries, the adoption of the controversial Anti-Counterfeit Trade Agreement (ACTA), or corporate acquisitions of large patent portfolios.
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