Edited by Josef Drexl
Chapter 11: Making Antitrust and Intellectual Property Policy in the United States: Requirements Tie-ins and Loyalty Discounts
Warren S. Grimes 1 Introduction Competition law and intellectual property (IP) law are at times complementary, at other times rivalrous. Finding the right policy balance is at once a formidable but vital task. At stake is achieving the right flow of IP incentives, a balance that encourages innovation without unduly undermining competition and the very innovation that IP is designed to promote. This chapter examines how antitrust policy that bears on intellectual property is established and enforced in the United States. It begins by describing the overarching debate concerning the proper reach and interpretation of intellectual property rights. It then describes US agencies and courts that play a major role in establishing competition policy. Finally, it examines two substantive areas, requirements tie-ins and loyalty discounts on strongly branded products, to gain greater perspective on whether the mechanisms for establishing IP-related competition law policy are working well. Because of the strong public-choice bias that favors creation and extension of IP rights, the broader public interest in competition and constraining overly broad IP protection is often under-represented. The interaction between IP and competition law works best when the two US antitrust enforcement agencies, the Antitrust Division of the Department of Justice (DoJ) and the Federal Trade Commission (FTC), are vigorous advocates for competition. 2 The debate concerning the reach of IP rights The antitrust and intellectual property debate has divided expert opinion in the United States. On one side of the issue are scholars, judges and policy makers who believe that more...
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