Entering the Innovation Twilight Zone: How Patent and Antitrust Law Must Work Together

57 Pages Posted: 26 Jun 2015

See all articles by Jeffrey I. D. Lewis

Jeffrey I. D. Lewis

Norton Rose Fulbright US LLP; Benjamin N. Cardozo School of Law

Maggie Wittlin

University of Nebraska at Lincoln - College of Law

Date Written: June 24, 2015

Abstract

Patent law and antitrust law have traded ascendancy over the last century, as courts and other institutions have tended to favor one at the expense of the other. In this Article, we take several steps toward stabilizing the doctrine surrounding these two branches of law. First, we argue that an optimal balance between patent rights and antitrust enforcement exists that will maximize consumer welfare, including promoting innovation and economic growth. Further, as Congress is the best institution to find this optimum, courts should enforce both statutes according to their literal text, which grants absolute patent rights but allows for more discretion in antitrust enforcement. Second, we propose three possible reasons for the historical conflict between these regimes: cultural cognition, political economy, and federal court structure. As a result, we propose two stabilizing solutions: research into culturally depolarizing communication techniques and a two-court “Innovation Circuit.”

Keywords: patent, antitrust

Suggested Citation

Lewis, Jeffrey I. D. and Wittlin, Maggie, Entering the Innovation Twilight Zone: How Patent and Antitrust Law Must Work Together (June 24, 2015). Vanderbilt Journal of Entertainment & Technology Law, Vol. 17, No. 3, 2015. Available at SSRN: https://ssrn.com/abstract=2622584

Jeffrey I. D. Lewis

Norton Rose Fulbright US LLP ( email )

1301 Avenue of the Americas
New York, NY 10019
United States

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Maggie Wittlin (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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