Transitions in IP and Antitrust

• Published date: 01 June 2002
• Date: 01 June 2002
• DOI: 10.1177/0003603X0204700202
• Subject Matter: Article

The Antitrust Bulletin/Summer-Fall 2002

Transitions in

IP

and

antitrust

BY

MARK

D.

JANIS*

253

In 1973,

when

Ward

Bowman

argued

that the

conflict

between

patents and antitrust was "illusory,"! few others took that position.

At the time, most

commentators

characterized the antitrust and

intellectual property

(lP)

regimes as adverse to one another; the

rhetoric

of

collision and

conflict

dominated the IP

and

antitrust

literature." Today, by

contrast,

commentators

commonly

assert

*Professor

of

Law, University

of

Iowa College

of

Law.

AUTHOR'S

NOTE:

Thanks

to

Herb

Hovenkamp

for

reviewing

this

manuscript,

and

to Gary Quick

and

Rob Hodgson

for

providing excellent

research assistance.

WARD

S.

BOWMAN,

JR.,

PATENT

AND

ANTITRUST

LAW:

A

LEGAL

AND

ECONOMIC

APPRAISAL

ix (1973).

Bowman's

book included "a detailed and

readable analysis

of

major patent antitrust problems viewed from the van-

tage point

of

Chicago school economics."

LAWRENCE

ANTHONY

SULLIVAN,

ANTITRUST

502

n.l

(1977) (proceeding to characterize the book as being

"of

general interest and value," although less pragmatic than certain other

economic

analyses

of

the'

patent

right).

See also

Richard

A.

Posner,

Exclusionary Practices

and

the Antitrust Laws. 41 U. Cm. L.

REV.

506.

506

n.I

(1973) (praising

Bowman's

book

as the

"most

recent-and

a very

worthwhile-product

of

the

Chicago

school").

For

areview and critique.

see Oliver E. Williamson, Review

of

Patent and Antitrust Law, 83

YALE

L.J. 647 (1973).

2See, e.g.•

SULLIVAN.

supra note 1. at 505 ("Let there be no pretense

that the patent system is not in potential collision with antitrust: it clearly

is"). Tom &Newberg have described this view as the "separate spheres"

model of IP and antitrust. which predominated in the early

and

middle

20th century. Willard K.

Tom

&

Joshua

A. Newberg. Antitrust

and

Intel-

lectual Property: From Separate Spheres to Unified Field. 66

ANTITRUST

© 2002 by Federal Legal Publications. Inc.

254

The antitrust bulletin

that

IP

and

antitrust

share

a

complementary

overarching

vision,"

while

also

noting

that

the

respective

means

of

implementing

that

vision

are

routinely

in

tension."

What

changed?

The

answer

is

complex,

and

might

be

given

from

many

perspectives.

I

take

a

patent

law

perspective.

Taking

as

a

starting

point

the

1970s-when

Bowman

published

his

synthesis

of

patent

and

antitrust

law-I

examine

selected

changes

within

the

patent

system

and

consider

how

they

have

contributed

to

bringing

IP

and

antitrust

doctrine

to

its

present

state."

Three

patent

L.J. 167,

167-73

(1997). See also

Louis

Kaplow, The Patent-Antitrust

Intersection: AReappraisal, 97

HARV.

L.

REV.

1813 (1984) (describing in

detail the patent-antitrust

"conflict"

and proposing to address the conflict

via a

"ratio

test"

requiring

optimization

of

patent life).

See, e.g.,

Sheila

F. Anthony, Antitrust and Intellectual Property

Law: From

Adversaries

to

Partners,

28

A.I.P.L.A.

Q.J.

1,4

(2000)

(describing

as

"outdated"

the

"adversarial"

approach to IP and antitrust);

E.

Thomas

Sullivan, The Confluence

of

Antitrust and Intellectual Prop-

erty

at

the

New

Century,

1

MINN.

INTELL.

PROP.

REV.

1,

2-4

(2000)

(asserting

that

an

accurate

account

of

history demonstrates that IP and

antitrust

are

complementary).

See also

DOJ/FTC

ANTITRUST

GUIDELINES

FOR

THE

LICENSING

OF

INTELLECTUAL

PROPERTY

§

1.0

(1995)

(IP

and

antitrust

regimes

are

complementary).

But

cf

James Langenfeld, Intellec-

tual Property

and

Antitrust: Steps Towards Striking a Balance, 52

CASE

W.

RES.

L.

REV.

91 (2001) (recent decisions concerning issues such as the

unilateral

refusal

to

license

intellectual

property

highlight

the

tension

between

IP

and

antitrust).

4See

HERBERT

HOVENKAMP,

MARK

D.

JANIS

&

MARK

A.

LEMLEY,

IP

AND

ANTITRUST:

AN

ANALYSIS

OF

ANTITRUST

PRINCIPLES

APPLIED

TO

INTEL-

LECTUAL

PROPERTY

§1.3 (2001); see also

Norman

E. Rosen, Intellectual

Property

and

the Antitrust Pendulum: Recent Developments at the Inter-

face

Between the Antitrust

and

Intellectual Property Laws, 62

ANTITRUST

L.J.

669

(1994)

(attributing

to

patent

and

antitrust

laws

the

"identical

objective

of

optimizing

economic

performance"

but

noting

that

they

"approach

this

objective

dynamically

through different policies

and

often

with

considerably

different

time

horizons").

That

is,

just

as the starting

point

for the analysis coincides with

the

publication

of

one

prominent

synthesis

of

patent and antitrust doc-

trine

(Bowman's),

the

ending

point

of

the

analysis

coincides

with

the

publication

of

a

new

and

(hopefully)

prominent

synthesis

of

IP

and

antitrust

(HOVENKAMP,

JANIS

&

LEMLEY,

supra note 4).