Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ
Joshua D. Wright
Antonin Scalia Law School, George Mason University
Douglas H. Ginsburg
U.S. Court of Appeals for the District of Columbia Circuit; Antonin Scalia Law School, George Mason University
December 10, 2013
Competition Policy International, Vol. 9, No. 2, Fall 2013, Forthcoming
George Mason Law & Economics Research Paper No. 13-71
In modern antitrust law, intellectual and other forms of property have been treated symmetrically as a matter of principle. Recent actions by the Federal Trade Commission and Antitrust Division of the Department of Justice, however, sound a departure from this salutary principle of symmetry. In this paper, we describe and defend the principle against the recent barrage of agency testimony and enforcement actions discouraging holders of standard essential patents from pursuing preliminary injunctions or exclusion orders; arguing that breach of a FRAND commitment constitutes an antitrust violation; and tightening merger review involving standard essential patents.
Number of Pages in PDF File: 25
Keywords: ad hoc, asymmetry, contract, copyright, economic theory, empirical data, injunctive relief, inhospitability tradition, IP Guidelines, IPR, licensing, patent, patent pool, patent holdup, per se, presumption, RAND, reasonable and nondiscriminatory, refusal to deal, SEP, SSO, standards setting
JEL Classification: K12, K21, K23, K42, L40
Date posted: December 11, 2013
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