Patent=Monopoly: A Legal Fiction

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

See all articles by Sven Bostyn

Sven Bostyn

University of Copenhagen - Faculty of Law

Nicolas Petit

European University Institute - Department of Law (LAW)

Date Written: December 31, 2013


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: or

Sven Bostyn

University of Copenhagen - Faculty of Law

Karen Blixens Plads 16
Copenhagen, DK-2300

Nicolas Petit (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze

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