Intellectual Property Rights and Antitrust Policy: Four Principles For A Complex World

Intellectual property law and antitrust policy interact in several important ways. Antitrust policy can shape the nature and value of intellectual property rights by placing restrictions on the acquisition of intellectual property, refusals to deal, and the terms adopted in licensing agreements. Moreover, antitrust policy affects the nature of product-market competition, which in turn affects the returns to the acquisition and use of intellectual property. In the other direction, intellectual property policy can have significant effects on product-market competition and innovation—areas that are central concerns of antitrust policy. Today, it is fashionable to declaim that a historically perceived tension between intellectual property law and antitrust policy was overstated. The old view held that intellectual property rights regimes create monopolies to spur innovation, while competition policy seeks to eliminate monopolies.1 The modern view holds that both intellectual property law and antitrust policy seek to promote innovation and consumer welfare by creating an economic environment in which innovative activities are stimulated by both competition and the promise of returns to successful innovation.2