Antitrust and Patent Law as Component Parts of Innovation Policy


We have two conceptions of the relationship between antitrust and patent: in tension or complementary. In reality, both conceptions have an element of truth; the relationship is multidimensional. The relationship between antitrust law and patent law involves a series of trade-offs: How much should competition be suppressed in the short run in order to encourage innovation in the long run? Are there instances and industries where intellectual property rights are unnecessarily expansive, such that competition is suppressed more than needed to incentivize innovation? These trade-offs between antitrust and patent take place in the context of broader innovation policy.

Instead of thinking about patent policy versus antitrust policy, we should be discussing an innovation policy that has two constituent parts: IP and competition law. IP law may be a cornerstone of innovation policy, but the patent system — as currently constructed — cannot maximize innovation without the assistance of a strong antitrust regime. Antitrust and patents are not merely complementary in that they pursue the goal of innovation; instead, they affirmatively depend on each other. Both are necessary; neither is sufficient. They are components of an overall innovation policy that maximizes both static and dynamic competition.

This Article explains how patent law and antitrust law should operate in tandem to condemn and deter several forms of innovation-stifling activity. Judges too often operate as if, when patent law proscribes particular conduct, an antitrust remedy is unnecessary and no antitrust violation has been committed. This Article argues that patent and antitrust remedies operate differently, and that when particular conduct violates both areas of law, both patent and antitrust penalties should be imposed. Finally, this Article discusses the relative advantages of patent and antitrust law when both condemn the same misconduct and argues that antitrust should play a greater role than it currently does.

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