Profit Neutrality in Licensing: The Boundary between Antitrust Law and Patent Law
Stephen M. Maurer
University of California, Berkeley
University of California - Department of Economics ; School of Law, University of California, Berkeley; National Bureau of Economic Research (NBER)
American Law and Economics Review, Vol. 8, Issue 3, pp. 476-522, 2006
We address the patent/antitrust conflict in licensing and develop three guiding principles for deciding acceptable terms of license. Profit neutrality holds that patent rewards should not depend on the rightholder's ability to work the patent himself. Derived reward holds that the patentholder's profits should be earned, if at all, from the social value created by the invention. Minimalism holds that licenses should not be more restrictive than necessary to achieve neutrality. We argue that these principles are economically sound and rationalize some key decisions of the twentieth century such as General Electric and Line Material.
Date posted: February 29, 2008