Patents v. Antitrust: Preempting Conflict

American University Law Review, Vol. 66, No. 415, 2016

64 Pages Posted: 8 Mar 2016 Last revised: 27 Apr 2017

See all articles by Matthew Sipe

Matthew Sipe

University of Baltimore School of Law

Date Written: August 1, 2016


The dissonance between patent law and antitrust law has persisted despite a century of attempts at harmonization. This Article suggests an elegant, novel solution: preemption doctrine. Recognizing the limits of and costs associated with antitrust law, the U.S. Supreme Court has already held that where an alternative regulatory authority exists—and overlapping application of antitrust regulation would lead to conflict—antitrust law may be implicitly preempted. But this doctrine remains almost entirely unexplored. This Article applies preemption doctrine precedent to the patent-antitrust context, analyzing where patent regulatory authority exists and where simultaneous antitrust regulation is likely to generate conflicting guidance and requirements. Under the Court’s precedent, this combination of overlap and conflict should be enough to support preemption, at least within certain categories of patent cases. Moreover, this Article explores how the unique nature of patents and the interplay—and tension—that patent law alone has with antitrust law supports an even broader interpretation of existing preemption doctrine in this context.

Keywords: Intellectual Property, Patents, Antitrust, Credit Suisse, Preemption, USPTO, ITC, Federal Circuit

Suggested Citation

Sipe, Matthew, Patents v. Antitrust: Preempting Conflict (August 1, 2016). American University Law Review, Vol. 66, No. 415, 2016, Available at SSRN:

Matthew Sipe (Contact Author)

University of Baltimore School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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