Abstract

http://ssrn.com/abstract=2038039
 


 



Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP


Mark A. Lemley


Stanford Law School

Mark P. McKenna


Notre Dame Law School

April 10, 2012

Georgetown Law Journal, Vol. 100, p. 2055, 2012
Stanford Law and Economics Olin Working Paper No. 424
Notre Dame Legal Studies Paper No. 12-75

Abstract:     
Antitrust law explicitly depends on market definition. Many issues in IP law also depend on market definition, though that definition is rarely explicit.

Applying antitrust's traditional market definition to IP goods leads to some startling results. Despite the received wisdom that IP rights don't necessarily confer market power, a wide array of IP rights do exactly that under traditional antitrust principles. This result requires us to rethink both the overly-rigid way we define markets in antitrust law and the competitive consequences of granting IP protection. Both antitrust and IP must begin to think realistically about those consequences, rather than falling back on rigid formulas or recitation of the mantra that there is no conflict between IP and antitrust.

Number of Pages in PDF File: 63

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Date posted: April 11, 2012 ; Last revised: September 19, 2012

Suggested Citation

Lemley, Mark A. and McKenna, Mark P., Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP (April 10, 2012). Georgetown Law Journal, Vol. 100, p. 2055, 2012; Stanford Law and Economics Olin Working Paper No. 424; Notre Dame Legal Studies Paper No. 12-75. Available at SSRN: http://ssrn.com/abstract=2038039 or http://dx.doi.org/10.2139/ssrn.2038039

Contact Information

Mark A. Lemley (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
Mark P. McKenna
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0780
United States
(574) 631-9258 (Phone)
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