Patent=Monopoly: A Legal Fiction

19 Pages Posted: 2 Jan 2014 Last revised: 9 Jan 2014

Sven Bostyn

University of Liverpool - School of Law & Social Justice

Nicolas Petit

University of Liege - School of Law; International Center for Law & Economics (ICLE); University of South Australia - School of Law

Date Written: December 31, 2013

Abstract

A patent right is an exclusionary right. With it, the patent holder can exclude third parties from making, using, selling, etc. products or processes protected by his patent. In the past, this right has also been referred to as a 'monopoly right' and this has lead to considerable confusion about the scope of patent rights and the role of the patent system in a modern economy. This paper seeks to provide some clarity on this issue and highlight the distinction between the exclusionary right granted by patent law and the notion of monopoly in economic regulation.

Keywords: Patent, monopoly, IP, antitrust, exclusionary right, innovation, power over price

JEL Classification: K21; L4; O31; O34; 038

Suggested Citation

Bostyn, Sven and Petit, Nicolas, Patent=Monopoly: A Legal Fiction (December 31, 2013). Available at SSRN: https://ssrn.com/abstract=2373471 or http://dx.doi.org/10.2139/ssrn.2373471

Sven Bostyn

University of Liverpool - School of Law & Social Justice ( email )

Brownlow Hill
Liverpool, L69 3BX
United Kingdom

Nicolas Petit (Contact Author)

University of Liege - School of Law ( email )

B-4000 Liege
Belgium

International Center for Law & Economics (ICLE) ( email )

United States

HOME PAGE: http://www.laweconcenter.org/contact.html

University of South Australia - School of Law ( email )

GPO Box 2471
Adelaide SA 5001
Australia

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