Innovation Under Section 2 of the Sherman Act

40 Pages Posted: 6 Apr 2021

See all articles by Richard Gilbert

Richard Gilbert

University of California, Berkeley

A. Douglas Melamed

Stanford Law School

Date Written: April 2, 2021


Antitrust cases, including recent complaints filed against dominant technology platforms, have alleged conduct that harms innovation. Courts, however, have little experience adjudicating such allegations. This article concludes that Section 2 of the Sherman Act is sufficiently broad to address conduct that harms innovation and describes various ways in which innovation might affect the determination of antitrust liability or provide a defense against anticompetitive conduct. The article briefly reviews the economics literature relating the effects of market power on innovation incentives and identifies circumstances in which structural conditions warrant a presumption that anticompetitive conduct by a dominant firm is likely to harm or promote innovation.

Keywords: Innovation, antitrust, Sherman Act, monopolization

JEL Classification: K21, L41

Suggested Citation

Gilbert, Richard and Melamed, Doug, Innovation Under Section 2 of the Sherman Act (April 2, 2021). Available at SSRN: or

Richard Gilbert (Contact Author)

University of California, Berkeley ( email )

Department of Economics
530 Evans Hall #3880
Berkeley, CA 94720
United States
510 642 1507 (Phone)

Doug Melamed

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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