Thursday, March 26, 2009
posted by Shubha Ghosh
Congratulations to Professor Michael Carrier of Rutgers-Camden Law School on the publication of his new book Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law, published earlier this month by Oxford University Press.
Professor Carrier shared some of the manuscript chapters with me last year, and so I was lucky enough to have a sneak preview of this important book. The final product is impressive and worth including in your antitrust/intellectual property/innovation policy library. The book tackles the difficult task of reconciling intellectual property law and antitrust law. The tension between the two has typically been understood as one between a body of law that creates monopolies (intellectual property) and one that breaks them up (antitrust). This dichotomy, we all know, is overly simplistic, but the challenge is to find a way to bring these two areas of law under one umbrella. Some, like me, have made the case for treating the two bodies of law as governing different (but overlapping) types of competition. Professor Carrier makes the case for innovation as the normative foundation that reconciles the two fields. His book makes an excellent argument for this normative foundation and the for the broader proposition that intellectual property and antitrust are more allies than foes.
The book is divided into four parts. Part One provides an primer on what Professor Carrier means by innovation as well as of the basics of intellectual property law, antitrust law, and the perceived conflict between the two. Part Two turns to copyright law with a focus on peer to peer technologies, copyright damages, and digital copyright. Part Three looks at the patent system, and the debates over patent opposition procedure, patent remedies, and biotechnology patents. Part Four concludes with a consideration of three areas where antitrust and intellectual property overlap: pharmaceutical markets, standard setting organizations, and patent settlement agreements. The chapters form a ten point proposal for innovation proposal, one that guides the application of both intellectual property and antitrust to the promotion of innovation.
The definition of innovation Professor Carrier adopts is a straightforward one: "Innovation consists of the discovery, development, and commercialization of new and improved products and services." [page 19]. This definition encompasses both the Constitutional goal of using intellectual property to promote progress in science and the useful arts as well as the goal of antitrust in promoting competition and consumer welfare. What I found particularly appealing about Professor Carrier's approach is his recognition that innovation is a process that occurs over time and in the context of different markets. He spends time breaking down the various processes that constitute innovation and identifying the roles of intellectual property and antitrust in regulating each of these stages. This framework is a useful that is adaptable beyond the particular applications in this book. It would be interesting to see how the approach could be used for merger analysis as well as applications to other types of intellectual property such as trade secrets and trademarks.
Professor Carrier's achievement is a remarkable one, and I am excited to see this topic getting attention by Oxford University Press. I look forward to more reviews and to the various blog posts that will be dedicated to this book. Look for more commentary here.