Edited by Einer R. Elhauge
Chapter 13: The Intersection of Patent and Antitrust Law
Christopher Jon Sprigman* INTRODUCTION Antitrust law’s treatment of potentially anticompetitive business conduct involving patents has oscillated between aggressive intervention and acceptance bordering on complacency. Pre-Chicago antitrust viewed patents as monopolies, and the exercise of patent rights as likely to raise antitrust concerns. This view led antitrust courts to construe the scope of patents narrowly, and to intervene to police licensing terms, price restraints, and other business conduct of patentees that might harm competition.1 It also led the federal antitrust agencies toward close policing of patent licenses.2 Following its Chicago reformulation, antitrust has slowly moved away from its former hostility. Some of this movement reflects a reappraisal of the respective roles that antitrust and intellectual property (IP) play in consumer and social welfare. By the advent of the agencies’ 1995 Antitrust Guidelines for the Licensing of Intellectual Property,3 the prevailing view had shifted markedly away from the presumed antagonism that characterized the patent–antitrust interface pre-Chicago. The IP Guidelines denied, at least implicitly, any foundational incompatibility, stating instead that ‘[t]he intellectual property laws and the antitrust laws share the common purpose of promoting innovation and enhancing consumer welfare’.4 Based in part on this shift in background presumptions, the IP Guidelines asserted that IP licensing was broadly procompetitive, and that the rule of reason would be applied in the antitrust analysis of licensing restraints. The author wishes to thank Einer Elhauge for comments on a previous draft. See, e.g., Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230 (1964)...
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