The Role of Design Choice in Intellectual Property and Antitrust Law

35 Pages Posted: 2 Nov 2016 Last revised: 10 Nov 2016

See all articles by Stacey L. Dogan

Stacey L. Dogan

Boston University - School of Law

Date Written: October 15, 2016


When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to optimize enforcement of intellectual property rights, and monopolists need not consider the effects on competitors when they devise and sell new products.

Yet in both contexts, on rare occasions, courts deem the non-interference principle inapplicable and find liability, at least in part, based on a party’s choice of product design. Although intellectual property and antitrust scholars have each addressed judicial treatment of product design within their discipline, commentators have given little attention to similarities and differences between how the non-interference principle plays out in each context. Such an investigation yields interesting insights about the values underlying non-interference, and has implications for judges applying the principle in both intellectual property and antitrust law. This essay explores the non-interference principle in intellectual property and antitrust law, with an eye toward the factors that determine its applicability across the two doctrinal contexts.

Keywords: Antitrust, Copyright, Interoperability, Monopoly, Intermediary Liability, Secondary Liability, Contributory Infringement, Trademark

JEL Classification: K21, K23, O34, O31, O32

Suggested Citation

Dogan, Stacey L., The Role of Design Choice in Intellectual Property and Antitrust Law (October 15, 2016). 15 Colo. Tech. L.J. __ (Forthcoming), Boston Univ. School of Law, Public Law Research Paper No. 16-45, Available at SSRN:

Stacey L. Dogan (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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