Introduction

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chapter 1

Introduction

I. Overview of Intellectual Property and Antitrust Law

This book is about the intersection of intellectual property (IP) law and

antitrust law. As noted in the inaugural 2016 edition, it is a busy inter-

section and there is no reason to think that the heavy traffic will abate

anytime soon. Between 2016 and now, two different presidential adminis-

trations have further shaped antitrust policy. Makan Delrahim, serving as

Assistant Attorney General for the Department of Justice Antitrust Divi-

sion in the Trump administration, sought to implement a renewed focus on

using antitrust law to protect intellectual property rights, which he termed

the “New Madison” approach. The election of Joe Biden in 2020 also her-

alded renewed antitrust enforcement, with more focus on regulating large

technology companies. And members of Congress continue to propose new

antitrust legislation. Thus, it remains a dynamic, if uncertain, period in

antitrust law.

This book is a snapshot. It focuses on developments in intellectual

property and antitrust law that have occurred in the past 24 months but

combined with some older case law for context. It is expected that this book

will be followed by periodic editions that will focus on new developments

in intellectual property and antitrust law. There is every reason to believe

that the law in these areas will continue to develop rapidly, and this book

is intended to help the intellectual property practitioner remain informed

on recent developments and the numerous ways in which antitrust law

limits, disciplines, and counterbalances intellectual property law and vice

versa.

This is not a treatise. This book is aimed at intellectual property law-

yers and it is not encyclopedic. There are numerous issues in antitrust law

that are not addressed here. Just as there are many important intellectual

property topics that are not addressed here. The subject matter of this

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