Monday, July 7, 2014
Alden Abbott (Heritage) describes The evolving IP–antitrust interface in the USA—the recent gradual weakening of patent rights.
ABSTRACT: The relationship between patent law and antitrust enforcement has undergone pendulum swings in the USA over the past century, alternating between periods of antitrust deference to patent rights and subordination of patent rights to antitrust concerns. The ‘pro patent’ era that began in the 1980s appears to be ending, as US public officials increasingly are raising concerns about potential patent-related abuses that are deemed harmful to competition. These concerns are backed by recent economic research that characterizes patents as ‘probabilistic’ property rights, and by studies that highlight social costs alleging stemming from the proliferation of ‘low quality’ patents and patent-related litigation abuses. This research, however, is far from definitive. Transactions cost and commercialization theories justifying robust patent protection, combined with research finding a positive relationship between economic growth and strong patents, suggest that enforcers should tread cautiously before unleashing new antitrust challenges to heretofore accepted efforts by patentees to maximize returns to their holdings. In short, a rush to impose new antitrust constraints on patents could prove harmful, rather than beneficial, to social welfare.