Institutional Advantage in Competition and Innovation Policy

10 Pages Posted: 9 Aug 2013 Last revised: 29 Dec 2013

See all articles by Herbert Hovenkamp

Herbert Hovenkamp

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

Date Written: September 12, 2013


In the United States responsibility for innovation policy and competition policy are assigned to different agencies with different authority. The principal institutional enforcers of patent policy are the United States Patent and Trademark Office (USPTO), the International Trade Commission (ITC), and the federal district courts as overseen by the United States Court of Appeals for the Federal Circuit, and ultimately the Supreme Court. While competition policy is not an explicit part of patent policy, competition issues arise frequently, even when they are not seen as such.

Since early in the twentieth century antitrust courts have had to confront practices that implicate patent law. Over the next century patent/antitrust policy veered between extremes, from periods characterized by heavy deference to patent practices, even where they seemed obviously anticompetitive, to periods in which the courts viewed patents as little more than a nuisance and used every opportunity to apply the antitrust laws against them.

This brief essay addresses the question of relative institutional advantage in cases where both competitive harm and harm to innovation are relevant but patent and antitrust approaches differ widely and are likely to reach different conclusions.

Keywords: antitrust, monopoly, collusion, innovation, patents, Hatch-Waxman, cartels

Suggested Citation

Hovenkamp, Herbert, Institutional Advantage in Competition and Innovation Policy (September 12, 2013). U Iowa Legal Studies Research Paper No. 13-43, Available at SSRN: or

Herbert Hovenkamp (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
319-512-9579 (Phone)

University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

University College London ( email )

Gower Street
London, WC1E 6BT
United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics