International Cooperation and the Patent-Antitrust Intersection
38 Pages Posted: 22 Aug 2012 Last revised: 18 Nov 2018
Date Written: January 5, 2010
Commentators have long recognized the need to coordinate questions at the patent-antitrust intersection with other policy levers available under patent law. In the international context, however, control over patent policy has been fractured and entrusted to diverse decisionmakers. Many details of patent law are tightly coordinated by international agreement, while others related to antitrust are left to national discretion. This Article evaluates the consequences of this fracture, and notes ways in which the prevailing treaty regimes (the Paris Convention and the TRIPS Agreement) distort incentives for national policymaking. National discretion at the patent-antitrust intersection can be expected to result in suboptimally weak inventor rewards implemented at unnecessarily high costs. Alternatively, closer coordination of national patent systems could provide more incentive to conduct research and development at lower cost.
Keywords: patent, antitrust, TRIPS, international coordination
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