The Roberts Court after Two Years: Antitrust, Intellectual Property Rights, and Competition Policy

18 Pages Posted: 11 Mar 2008 Last revised: 28 Dec 2013

Rudolph J.R. Peritz

New York Law School


The Supreme Court under Chief Justice John Roberts has rendered only one decision, Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) that explicitly addresses the relationship between antitrust and intellectual property rights. But there have been at least five more decisions that bear on the broader topic of competition policy and intellectual property rights. An interesting dynamic emerges from this cluster of opinions: While the antitrust cases apply intellectual property rights to justify restraints on competition, the three patent cases call for limits on their exclusionary logics and effectively seek to open the door to increased competition. Altogether, these six decisions seem to extend rather than alter the Court's preceding jurisprudential trajectories in antitrust and intellectual property rights. In this light, they offer some insights into the divergent approaches to competition policies that have developed in these overlapping regimes.

Especially for those who correlate progress with open access and competitive markets, these divergences summon closer attention to a neglected competition policy working within the patent regime, as well as to the broader array of competition logics working in the domain of intellectual property. The first section investigates some relationships between antitrust and intellectual property rights. It begins with Independent Ink, a tying case that involves a patented product, and then proceeds to explicate the power of trademark rights to shape the antitrust analysis of two price-fixing claims, one involving resale price maintenance and the other a joint venture in refining and marketing. The second section examines three patent cases, whose array of opinions seek to limit exclusionary rights and effectively open space for increased competition. The essay concludes with some observations about the crosscurrents of competition policy.

Keywords: antitrust, intellectual property, Supreme Court, patents, trademarks, vertical restraints, tying, price fixing

Suggested Citation

Peritz, Rudolph J.R., The Roberts Court after Two Years: Antitrust, Intellectual Property Rights, and Competition Policy. NYLS Legal Studies Research Paper No. 07/08-17; Antitrust Bulletin, Symposium on 'Antitrust and the Roberts Court', Vol. 53, p. 153. Available at SSRN:

Rudolph J.R. Peritz (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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