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Rethinking U.S. Antitrust and Intellectual Property Rights

16 Pages Posted: 6 May 2005  

Rudolph J.R. Peritz

New York Law School

Date Written: 2005


The paper discusses three claims as the framework for rethinking the relationship between antitrust and intellectual property rights (IP) in the United States: (1) the claim that antitrust has always been the product of a fundamental tension between competition policy and private property rights; (2) the claim that IP reflects its own tensions between competition and property rights - in particular, the paper argues that patent law, like copyright, advances progress best when it fosters competition in ideas, when it replenishes the reservoir of public knowledge; (3) the corollary claim that understanding the relationship between antitrust and patent law calls for recognition of the dual competition regime involved - antitrust law for commercial markets, patent law for the marketplace of ideas.

The paper concludes with a brief discussion of the "So what?" question: What difference would it make - this new vision of two competition logics working in these two linked but separate domains?

Keywords: antitrust, competition, intellectual property, patents, economics, law and economics, political economy

Suggested Citation

Peritz, Rudolph J.R., Rethinking U.S. Antitrust and Intellectual Property Rights (2005). NYLS Legal Studies Research Paper No. 04/05-22; American Antitrust Institute Working Paper No. 05-05. Available at SSRN: or

Rudolph J.R. Peritz (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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