Intellectual Property and Antitrust

Intellectual Property and Antitrust

A Comparative Economic Analysis of US and EU Law

New Horizons in Competition Law and Economics series

Mariateresa Maggiolino

This insightful book compares how the US and EU antitrust authorities have enforced Section 2 of the Sherman Act, and Article 102 of the TFEU against monopolists' practices involving intellectual property rights.

Chapter 7: Conclusion

Mariateresa Maggiolino

Subjects: economics and finance, intellectual property, law - academic, european law, intellectual property law


Nowadays, the EU jurisdiction finally concurs with the US jurisdiction in making antitrust law pivot around economics (Chapters 1 and 2). In dealing with the enforcement of antitrust provisions this means that, once chosen what economic model better explains the facts in question, antitrust authorities appreciate firms’ practices by verifying whether the scenario where the practices took place fits the theoretical hypothesis underpinning the selected economic model (Chapter 2). But, when the economic theory reaches its unsettled edges and cannot explain the facts in question in a conclusive way, the choice to make antitrust law pivot around economics not only morphs the decision to select a specific economic model into a policy choice, but also leaves antitrust authorities with no definitive benchmark for their assessments (Chapter 1). This is what happens when economics is required to explain how market monopolies and IPRs affect competition and innovation. On the one side, IP provisions and the antitrust rules about the scope of market monopolies govern altogether what intellectual resources monopolists may use, via what behaviors they can exploit them, and what benefits coming from market monopolies and IPRs monopolists can appropriate. Yet, on the other side, economics cannot fix from an ex ante and universal perspective the optimal level of intellectual resources that should be made available to monopolists, the catalog of monopolists’ harmful behaviors, and how many benefits are enough for monopolists to compete and innovate, across times, at a level which is optimal for the whole society. In summary, from...

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