Antitrust, Innovation, and Competitiveness

By Thomas M. Jorde; David J. Teece | Go to book overview

in faculty workshops at Boston University and Columbia Law Schools. They contributed only helpful advice, not any of the shortcomings that may remain.


NOTES
1.
W. Cohen, and R. Levin, "Empirical Studies of Innovation and Market Structure" in R. Schmalensee and R. Willig, eds., Handbook of Industrial Organization ( Amsterdam: North-Holland, 1989).
2.
See R. Nelson, "Capitalism as an Engine of Progress", Research Policy, forthcoming.
3.
E. Kitch, "The Nature and Function of the Patent System", J.L. and Economics 20 ( 1977): 266-283.
4.
R. Beck, "The Prospect Theory of the Patent System and Unproductive Competition", Res. in L. and Economics 5 ( 1983).
5.
See, e.g., Grant v. Raymond, 31 U.S. (6 Pet.) 218 ( 1832). ("An enabling disclosure is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent.")
6.
See, e.g., The Incandescent Lamp Patent, 159 U.S. 465 ( 1895).
7.
U.S. Patent 775, 134, issued Nov. 4, 1904. See Gillette Safety Razor Co. v. Clarke Blade & Razor Co., 187 F. 149, 149 (C.C.D.N.J. 1911), aff'd 194 F. 421 (3d Cir. 1912).
8.
187 F. 149 at 156.
9.
Id. at 149.
10.
Clarke Blade & Razor Co. v. Gillette Safety Razor Co., 194 F. 421, 423 (3d Cir. 1912), quoting from Deering v. Winona, 155 U.S. 286, 302 ( 1894). Note that current practice is to say that a specification, not a claim, is inoperative. However, perhaps owing to the similarity in language between specification and claim, both quoted in the text, the court analyzed the enablement defense in light of the claim.
11.
As we use the term in this article, device means a product, process, or compound.
12.
It is important to distinguish our use of the term "principle" here from its use in other contexts. We mean principle in the narrow sense of an underlying characteristic that supplies a family of devices with an identifiable quality. We do not mean a scientific or natural principle, i.e., a broadly applicable law, such as gravity or magnetism, which cannot be patented.
13.
The Incandescent Lamp Patent, 159 U.S. 465 ( 1895).
14.
Id. at 468.
15.
Id. at 474.
16.
56 U.S. (15 How.) 62 ( 1854).
17.
Id. at 114.
18.
Id. at 119-120:

If the eighth claim of the patentee can be maintained, there was no necessity for any specification, further than to say that he had discovered that, by using the motive power of electro-magnetism, he could print intelligible characters at any distance.... [T]his claim can derive no aid from the specification filed. It is outside of [the specification], and the patentee claims beyond it.

19.
See Columbia Motor Car Co. v. A.C. Duerr & Co., 184 F. 893 (2d Cir. 1911).
20.
See Electric Vehicle Co. v. Winton Motor-Carriage Co., 104 F. 814 (C.C.S.D.N.Y. 1900); Electric Vehicle Co. v. C.A. Duerr & Co., 172 F. 923 (C.C.S.D.N.Y. 1909),

-219-

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Antitrust, Innovation, and Competitiveness
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Notes viii
  • Contents ix
  • Contributors xi
  • 1 - Introduction 3
  • Notes 25
  • References 27
  • 2 - Antitrust Law as Industrial Policy: Should Judges and Juries Make It? 29
  • Notes 45
  • 3 - Innovation, Cooperation, and Antitrust 47
  • Notes 63
  • References 68
  • Appendix: National Cooperative Research and Commercialization Act (ncrca) 71
  • 4 - Antitrust: Source of Dynamic and Static Inefficiencies? 82
  • Notes 95
  • References 96
  • 5 - Agreements Between Competitors 98
  • Notes 114
  • 6 - Ignorance and Antithrust 119
  • Notes 132
  • 7 - Antitrust Lenses and the Uses of Transaction Cost Economics Reasoning 137
  • Notes 158
  • References 161
  • 8 - Monopoly Conduct, Especially Leveraging Power from One Product or Market to Another 165
  • 9 - Market Structure and Technical Advance: The Role of Patent Scope Decisions 185
  • Notes 219
  • 10 - Conclusion 233
  • Index 235
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