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In this article, I introduce the interaction between intellectual property (IP) and antitrust law. I describe the ways in which these two important areas of government regulation are and are not in tension, and discuss the history of the relationship between these laws. I argue that IP and antitrust have cycled between over- and under-protection, and that we are currently (and mistakenly) conditioned to think of private property and private ordering as efficient in and of themselves, rather than as efficient only in the context of robust market competition. Further, I argue that antitrust can serve the goals of innovation and dynamic efficiency directly in circumstances in which competition, not monopoly, serves as a spur to innovation. The goal of the IP and antitrust laws should be to seek a robust balance between competition and monopoly in the service of dynamic efficiency. When IP laws are strong, antitrust laws should also be strong, and vice versa.
Other publications by this author
- Brief Amici Curiae of Intellectual Property and Administrative Law Professors in Suppor of Appellants
- The Surprising Virtues of Treating Trade Secrets as IP Rights
- A Realist Approach to the Obviousness of Inventions
- Distinguishing Lost Profits from Reasonable Royalties
- Brief Amicus Curiae of 22 Law and Business Professors in Support of Appellants
- Are Universities Patent Trolls?
- The Trademark Use Requirement in Dilution Cases
- Categorical Analysis in Antitrust Jurisprudence
- How to Make a Patent Market
- The Limits of Claim Differentiation
Author
- Mark A. Lemley
- Stanford Law School
- mlemley@law.stanford.edu
- 650 723.4605