Making Sense of Nonsense: Intellectual Property, Antitrust, and Market Power

73 Pages Posted: 11 Apr 2005  

Ariel Katz

University of Toronto - Faculty of Law

Abstract

While the economic rationale for intellectual property ("IP") rights rests on the concepts of "monopoly" or "market power," the U.S. Supreme Court, in Illinois Tool Works v. Independent Ink, has recently joined a "virtual consensus" among antitrust commentators believing that no presumption of market power should exist in antitrust cases involving IP. This Article critically analyzes this consensus, and clarifies the relationship between IP and market power, shows why IP rights often do confer market power in the antitrust sense, but also explains why acknowledging this should not necessarily lead to oversized application of antitrust law to IP.

Keywords: Intellectual Property, Antitrust, Market Power, Monopoly, Presumptions

JEL Classification: D43, K22, L40, O38

Suggested Citation

Katz, Ariel, Making Sense of Nonsense: Intellectual Property, Antitrust, and Market Power. Arizona Law Review, Vol. 49, No. 4, pp. 837-909, 2007; U of Toronto, Public Law Research Paper No. 02-05. Available at SSRN: https://ssrn.com/abstract=702462 or http://dx.doi.org/10.2139/ssrn.702462

Ariel Katz (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-8892 (Phone)
416-978-2648 (Fax)

HOME PAGE: http://www.law.utoronto.ca/faculty/katz

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