ARTICLE: ANTITRUST - INTELLECTUAL PROPERTY - EFFICIENCY - INNOVATION

Antitrust, intellectual property, and dynamic efficiency: An essay in honor of Herbert Hovenkamp

Article to be published in Herbert Hovenkamp Liber Amicorum, N. Charbit and al. (eds.), Concurrences, 2020.

This essay argues that, while intellectual property (IP) and antitrust often operate as complementary bodies of law, in some residuum of cases there will be widespread disagreement among forecasters about whether antitrust constraints on the exercise of IP rights are likely to inhibit or promote innovation. Among the most contentious of these at present are cases involving the assertion of FRAND-committed standard-essential patents (SEPs) and, relatedly, joint conduct on the part of firms that belong to standard development organizations (SDOs). To assist policymakers in coming to principled decisions in matters such as these, I propose and defend three guiding principles: (1) do not assume that stronger IP rights/weaker antitrust enforcement necessarily promotes innovation; (2) do consider whether other bodies of law are up to the task of addressing the potential severity of the harm alleged; and (3) filter out ideology and self-interest as much as possible. Although these recommendations will not reconcile all conflicting views, and may not provide definitive answers regarding whether or how to proceed, I argue that the quality of the ongoing debate would improve if enforcers made an effort honestly to engage them.

Introduction 1. Professor Herb Hovenkamp probably has contributed more to the field of antitrust scholarship than any other person over the past four decades. In recent years, much of his work has focused on the relationship between antitrust and the various bodies of intellectual property (IP) law, including patents, copyrights, and trademarks. In this regard, his contributions include two justly celebrated coauthored works, the monograph Creation without Restraint [1] and the IP and Antitrust treatise, [2] as well as a host of articles and book chapters covering patent pools, anticompetitive patent acquisitions, predatory innovation, post-sale restraints, and reverse payment settlements of pharmaceutical patent litigation. [3] Hovenkamp’s work addressing these and other subjects has

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  • University of Minnesota (Minneapolis)

Quotation

Thomas Cotter, Antitrust, intellectual property, and dynamic efficiency: An essay in honor of Herbert Hovenkamp, September 2020, Concurrences N° 3-2020, Art. N° 95413, www.concurrences.com

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