IP Misuse and Innovation Harm
Thomas F. Cotter
University of Minnesota Law School
August 26, 2011
Iowa Law Review Bulletin, Vol. 52, No. 96, 2011
Minnesota Legal Studies Research Paper No. 11-30
"This essay, a short response to Christina Bohannan’s important recent article, IP Misuse as Foreclosure, 96 Iowa Law Review 475 (2011), expresses agreement with Professor Bohannan’s conclusions that merely equating misuse with certain violations of substantive antitrust law is probably unwise; that the “beyond the scope” rationale nevertheless is vague; and that misuse doctrine might provide a useful tool for penalizing assertions of IP rights (principally copyright rights) that would foreclose access to the public domain and thus impinge upon free speech. The essay nevertheless expresses caution over Professor Bohannan’s call for courts to apply misuse doctrine to combat harms to competition and innovation - what I refer to in the essay as “innovation harm” - in a manner that would depart from standard antitrust law, at least to the extent that she contemplates fairly widespread use of the doctrine in this fashion"
Number of Pages in PDF File: 10
Keywords: patents, misuse, antitrust, innovation, copyrightworking papers series
Date posted: August 26, 2011
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