Antitrust, Intellectual Property, and Dynamic Efficiency: An Essay in Honor of Herbert Hovenkamp

Concurrences No.3, 2020

Liber Amicorum Herbert Hovenkamp, Nicolas Charbit & Sonia Ahmad eds., Institute for Competition Law, Forthcoming

18 Pages Posted: 26 Oct 2020

See all articles by Thomas F. Cotter

Thomas F. Cotter

University of Minnesota Law School

Multiple version iconThere are 2 versions of this paper

Date Written: September 1, 2020

Abstract

This essay argues that, while intellectual property (IP) and antitrust often operate as complementary bodies of law, in some residuum of cases there will be widespread disagreement among forecasters about whether antitrust constraints on the exercise of IP rights are likely to inhibit or promote innovation. Among the most contentious of these at present are cases involving the assertion of FRAND-committed standard-essential patents (SEPs) and, relatedly, joint conduct on the part of firms that belong to standard development organizations (SDOs). To assist policymakers in coming to principled decisions in matters such as these, I propose and defend three guiding principles: (1) do not assume that stronger IP rights/weaker antitrust enforcement necessarily promotes innovation; (2) do consider whether other bodies of law are up to the task of addressing the potential severity of the harm alleged; and (3) filter out ideology and self-interest as much as possible. Although these recommendations will not reconcile all conflicting views, and may not provide definitive answers regarding whether or how to proceed, I argue that the quality of the ongoing debate would improve if enforcers made an effort honestly to engage them.

Keywords: antitrust, patents

Suggested Citation

Cotter, Thomas F., Antitrust, Intellectual Property, and Dynamic Efficiency: An Essay in Honor of Herbert Hovenkamp (September 1, 2020). Concurrences No.3, 2020, Liber Amicorum Herbert Hovenkamp, Nicolas Charbit & Sonia Ahmad eds., Institute for Competition Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3687013

Thomas F. Cotter (Contact Author)

University of Minnesota Law School ( email )

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