Toward the Peaceful Coexistence of Patent and Antitrust Law

43 Pages Posted: 19 Nov 2020

See all articles by Richard Epstein

Richard Epstein

New York University School of Law

Date Written: November 11, 2020

Abstract

This chapter explores the interrelationship between these two basic provisions, both as a matter of general theory and through their development in case law over the past 130 years—which spans multiple eras of technological innovation. It is easy to find cases where patent law appears to move in one direction and antitrust law in the opposite. But as a general matter, this chapter defends the thesis that, as the Federal Circuit has written, “[t]he patent and antitrust laws are complementary, the patent system serving to encourage invention and the bringing of new products to market by adjusting investment-based risk, and the antitrust laws serving to foster industrial competition.” As a descriptive matter, today, this thesis is largely, but not uniformly, respected.

More specifically, the central task of this chapter is to note how the concern with monopolization—explicit in the antitrust laws—plays a powerful, if somewhat concealed, role in the articulation of patent law as well. As is always the case, any concern with monopolization is a two-edged sword: It is always important to make sure that monopoly practices do not go undetected, but it is equally important that the doctrines of both patent and antitrust law do not impose penalties for supposed monopolistic practices that ultimately turn out to be procompetitive.

Suggested Citation

Epstein, Richard, Toward the Peaceful Coexistence of Patent and Antitrust Law (November 11, 2020). The Global Antitrust Institute Report on the Digital Economy 11, Available at SSRN: https://ssrn.com/abstract=3733691 or http://dx.doi.org/10.2139/ssrn.3733691

Richard Epstein (Contact Author)

New York University School of Law ( email )

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

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