Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ
Competition Policy International, Vol. 9, No. 2, Fall 2013, Forthcoming
25 Pages Posted: 11 Dec 2013
Date Written: December 10, 2013
In modern antitrust law, intellectual and other forms of property have been treated symmetrically as a matter of principle. Recent actions by the Federal Trade Commission and Antitrust Division of the Department of Justice, however, sound a departure from this salutary principle of symmetry. In this paper, we describe and defend the principle against the recent barrage of agency testimony and enforcement actions discouraging holders of standard essential patents from pursuing preliminary injunctions or exclusion orders; arguing that breach of a FRAND commitment constitutes an antitrust violation; and tightening merger review involving standard essential patents.
Keywords: ad hoc, asymmetry, contract, copyright, economic theory, empirical data, injunctive relief, inhospitability tradition, IP Guidelines, IPR, licensing, patent, patent pool, patent holdup, per se, presumption, RAND, reasonable and nondiscriminatory, refusal to deal, SEP, SSO, standards setting
JEL Classification: K12, K21, K23, K42, L40
Suggested Citation: Suggested Citation