Intellectual Property and Competition Law

Forthcoming, Oxford Handbook of Intellectual Property Law (Rochelle C. Dreyfuss & Justine Pila eds. 2017)

34 Pages Posted: 11 May 2017 Last revised: 3 Feb 2018

Date Written: May 9, 2017

Abstract

This chapter, prepared for the Oxford Handbook of Intellectual Property Law, surveys the intersection of competition law — or antitrust law, as it is known in the United States — with intellectual property (IP). It examines whether and how IP rights alter the substantive scope of antitrust law, either by operation of statute or as a matter of economic policy. It discusses a wide variety of antitrust claims, alleging collusion, exclusion, or both, that have been raised against IP rights holders. The examples are drawn mainly from the United States, although European developments are also included where relevant. The analysis supports the conclusion that, beyond a rights holder’s core ability to assert a valid, infringed right against a rival, IP restricts antitrust law less than one might expect. Moreover, the restrictions that do exist are often subtle.

Keywords: antitrust, collusion, copyright, foreclosure, patent pool, performing rights organization, per se rule, price discrimination, product hopping, rule of reason, standard setting organization (SSO)

JEL Classification: K21, L41, O34

Suggested Citation

Hemphill, C. Scott, Intellectual Property and Competition Law (May 9, 2017). Forthcoming, Oxford Handbook of Intellectual Property Law (Rochelle C. Dreyfuss & Justine Pila eds. 2017). Available at SSRN: https://ssrn.com/abstract=2965617 or http://dx.doi.org/10.2139/ssrn.2965617

C. Scott Hemphill (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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