• Selected
• Entire List

Abstract:
In a consistent framework, both the antitrust and intellectual property laws should point toward the same goal: the maximization of social welfare. The attainment of this goal suggests that both sets of laws should be harmonized to attain this common goal and come to a joint solution with respect to the use/creation tradeoff. This paper examines the state of antitrust and intellectual property right protection for software, and finds little evidence that both sets of laws are being applied in a consistent manner. An examination of how the antitrust laws are applied to intellectual property industries finds little consideration of the unique appropriability and free riding problems that face intellectual property owners. As a result, antitrust enforcement has been hostile to intellectual property contracting and intellectual property industries, and to the maximization of dynamic efficiency. Further, static, ex-post competition arguments are now being used in support of weakening copyright protection. The outcome of this two-pronged attack is unlikely to yield a rational solution to the use/creation tradeoff.

Abstract:
In "In re Independent Service Organization Antitrust Litigation", the United States Court of Appeals for the Federal Circuit held that the Xerox corporation's refusal to sell or license its patented parts, copyrighted manuals, and patented and copyrighted software to independent service organizations did not violate the antitrust laws. Plaintiffs have filed a writ of certiorari based on the claim that the Federal Circuit's holding is in direct conflict with the Ninth Circuit's antitrust holdings in Image Technical Services v. Kodak. In this paper, we argue that this conflict is largely illusory. The decision in the Xerox case is exactly the result contemplated when the Federal Circuit was created - the recognition and uniform treatment of the patent holder's rights under the statutory patent grant. The Xerox decision does not go beyond this, and a comparison of these two decisions does not present a compelling case for the Court to unify their outcomes by reversing Xerox.