The Roberts Court after Two Years: Antitrust, Intellectual Property Rights, and Competition Policy

Posted by D. Daniel Sokol

Rudolph Peritz of New York Law School provides his analysis of the Roberts Court's antitrust jurisprudence in his paper The Roberts Court after Two Years: Antitrust, Intellectual Property Rights, and Competition Policy.

ABSTRACT: The Supreme Court under Chief Justice John Roberts has rendered only one decision, Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) that explicitly addresses the relationship between antitrust and intellectual property rights. But there have been at least five more decisions that bear on the broader topic of competition policy and intellectual property rights. An interesting dynamic emerges from this cluster of opinions: While the antitrust cases apply intellectual property rights to justify restraints on competition, the three patent cases call for limits on their exclusionary logics and effectively seek to open the door to increased competition. Altogether, these six decisions seem to extend rather than alter the Court‘s preceding jurisprudential trajectories in antitrust and intellectual property rights. In this light, they offer some insights into the divergent approaches to competition policies that have developed in these overlapping regimes.