Innovation and Competition Policy, Chap. 4 (2d ed): Competition Policy and the Patent System

104 Pages Posted: 4 Oct 2011 Last revised: 23 Jul 2013

See all articles by Herbert Hovenkamp

Herbert Hovenkamp

University of Pennsylvania Law School; University of Pennsylvania - The Wharton School; University College London

Date Written: July 22, 2013


This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses this casebook for a three-unit class in Innovation and Competition Policy taught at the University of Iowa College of Law and available to first year law students as an elective.

This document is the second edition of Chapter Four, which focuses on antitrust and the patent system, including the Walker Process doctrine and other issues relating to unreasonable enforcement, measurement of market power in patent monopolization cases, consumer standing to challenge improper patent exclusions, unreasonable and exclusionary uses of patent continuations and related devices. It also covers "pay for delay" settlements in cases involving pharmaceutical patents and the Hatch-Waxman Act, including the Supreme Court's 2013 Actavis decision, together with several notes and comments.

Keywords: antitrust, patents, intellectual property, walker process, hatch-waxman, inequitable conduct

Suggested Citation

Hovenkamp, Herbert, Innovation and Competition Policy, Chap. 4 (2d ed): Competition Policy and the Patent System (July 22, 2013). Available at SSRN: or

Herbert Hovenkamp (Contact Author)

University of Pennsylvania Law School ( email )

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University of Pennsylvania - The Wharton School ( email )

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University College London ( email )

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