IP and Antitrust Policy: A Brief Historical Overview

The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged threat to competition is real. At the same time, however, antitrust judges should not be reluctant to condemn IP practices once a real threat to competition is found, unless the practice has a clear justification in the IP statutes themselves or the explicit policies that the Supreme Court has derived from those statutes