United States Antitrust Policy in an Age of IP Expansion

The idea that there is a tension between antitrust and the intellectual property laws is readily exaggerated. The tension that exists results mainly from our uncertainty about the optimal amount and scope of IP protection. In general, antitrust draws clearer lines than intellectual property law does, although one should not push the point too far. Antitrust policy as manifested in the courts has achieved a fair amount of consensus today. By contrast, deep uncertainty remains about fundamental questions concerning the socially optimal outcome of IP disputes. In addition, while the antitrust statutes are for the most part public regarding provisions interpreted by the courts, the IP laws have increasingly become special interest statutes less concerned with optimal IP coverage and more concerned with protection of the claims of particular interest groups. As a result, antitrust needs to take a bolder position in areas of potential conflict with IP law than it has in the past. This does not mean that we must revert to a post-New Deal regime in which the courts imagined threats from IP rights where none existed. However, it does entail that antitrust stop being so deferential in areas where threats to competition are real and the IP laws are ambiguous on the issue in question