Counter-IP Conspiracies: Patent Alienability and the Sherman Antitrust Act

101 Pages Posted: 30 Aug 2017

See all articles by Hannibal Travis

Hannibal Travis

Florida International University College of Law

Date Written: April 17, 2017

Abstract

Anticompetitive collusion by intellectual property owners frequently triggered antitrust enforcement during the twentieth century. An emerging area of litigation and scholarship, however, involves conspiracies by potential licensees of intellectual property to reduce or eliminate opportunities by a property’s holders to profit from it, or even to recoup their investments in creating and protecting it. The danger is that potential licensees will collude with one another to suppress royalties or sale prices. This Article traces the history of such litigation, provides an overview of the scholarly and theoretical arguments against monopsonistic or oligopsonistic collusion against licensors of intellectual property, and summarizes empirical evidence that the prime economic and business-related justification for such collusion, namely the need to reduce patent holdup, is relatively weak. It argues that some decisions not to license intellectual-property rights, or to license them at suppressed rates, may be anticompetitive, particularly if they are the result of a collusive process or serve to maintain or expand market power. Finally, it urges greater attention from a macroeconomic perspective to the plight of inventors and workers in the high-technology and patent-intensive industries. As a preliminary attempt to heighten awareness of the issue, it describes recent allegations that market power on the part of consumers of high-technology patent licenses, and reduced bargaining clout on the part of individual employees and inventors, may be contributing to unemployment and inequality.

Suggested Citation

Travis, Hannibal, Counter-IP Conspiracies: Patent Alienability and the Sherman Antitrust Act (April 17, 2017). University of Miami Law Review, Vol. 71, 2017; Florida International University Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3028316

Hannibal Travis (Contact Author)

Florida International University College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

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