Symposium: Intellectual Property Rights and Federal Antitrust Policy: Introduction

By Hovenkamp, Herbert | Journal of Corporation Law, Spring 1999 | Go to article overview

Symposium: Intellectual Property Rights and Federal Antitrust Policy: Introduction


Hovenkamp, Herbert, Journal of Corporation Law


In the last few years antitrust has confronted intellectual property issues with a frequency and level of complexity seldom seen before. To be sure, judges deciding antitrust cases have dealt with antitrust issues since early in the century.1 The result has been a sizeable body of law relating to such things as tying arrangements involving patent licenses,2 price-fixing and territorial division in licensing agreements,3 or various misuses of patents by dominant firms, such as the filing of unwarranted infringement complaints.4

The new generation of intellectual property/antitrust cases is hardly the first time antitrust judges have had to confront the law and policy of intellectual property rights. But the decisions have faced a number of novel issues, dealt with increasingly complex markets, and attempted to fashion unique and sometimes unprecedented remedies. They have also exhibited some significant failures-ranging from the inability to measure market power in technologically complex markets5 to understandable befuddlement over whether two pieces of software bundled into a single package (Microsoft Windows 95 and Microsoft Internet Explorer) should be regarded as a "single product" or "separate products" for the law of tying arrangements.6 They have also expanded antitrust liability considerably-and in the process reduced the amount of protection historically given to intellectual property rights. The prominent examples include the Ninth Circuit's Kodak decision,7 creating a compulsory licensing duty for a simple refusal to deal when accompanied by anticompetitive intent, in apparent disregard of a provision to the contrary in the Patent Act8 as well as Supreme Court precedent.9 Another example is the Federal Circuit's C.R. Bard10 decision, approving a jury verdict that innovation itself can be an antitrust violation when it creates less compatibility with the unpatented complementary products provided by rivals.

The authors in this symposium address these problems as well as several others. First, Professor David McGowan looks at the problem of refusal to deal in intellectual property rights, particularly in networks. 11 McGowan surveys the wide variety of judicial and scholarly opinion on the refusal to deal problem. He finds the potential for anticompetitive effects to be somewhat greater in industries displaying substantial network effects; nevertheless, he concludes that "antitrust should not, under any market conditions, declare that the use of intellectual property rights in acts of. . . `pure exclusion' violate the antitrust laws."12 He then defines pure exclusion as situations "in which the owner of a valid intellectual property right, validly obtained, unilaterally refuses to sell or license the technology covered by the right to a party wishing to obtain the technology."13 McGowan finds this right to be so well established in the patent and copyright regimes that it must be regarded as beyond dispute.14 He would continue to recognize some basis for antitrust liability in cases that involve more traditional claims of anticompetitive intellectual property "misuse," such as tying arrangements, reciprocity, and the like.15 Nevertheless, he argues that these can be dealt with under well established antitrust principles.16 For example, McGowan finds grounds for antitrust concern in the "coercive reciprocity" claim raised in the Intel litigation,17 namely, that Intel withheld its intellectual property from certain firms unless they agreed to give it intellectual property licenses in return.18 He also faults the Ninth Circuit's decision in the Kodak litigation for making the duty to license intellectual property depend on the defendant's subjective intent.19 Most significantly, Professor McGowan concludes that even in network industries use of the antitrust laws to condemn unconditional refusals to deal would severely limit the protection offered by the intellectual property statutes, while providing benefits to competition that are ambiguous at best.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Symposium: Intellectual Property Rights and Federal Antitrust Policy: Introduction
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.