CONTEMPORARY ISSUES AT THE INTERSECTION OF INTELLECTUAL PROPERTY AND ANTITRUST

Makan Delrahim, Deputy Assistant Attorney General Antitrust Division U.S. Department of Justice

3/18/2015
(Original Publish Date: 11/10/2004)

Critics of strong intellectual property rights assert that such rights create undeserved "monopolies" that, in turn, lead to anticompetitive conduct, including horizontal market allocations and naked price fixing. These critics urge that antitrust enforcement is an appropriate means to curb the so-called problems associated with strong intellectual property protections, such as the issuance of patents that, in hindsight, do not meet the standards of patentability. Some critics are of the view, for example, that the antitrust laws can, and should, be used to fix imperfections in our copyright laws or patent system, which they argue is outdated or overburdened. The US Department of Justice strongly disagrees with this application of the antitrust laws, for the antitrust laws are not the appropriate vehicle to generate reform in these areas. To the contrary, antitrust laws, which protect competition, not competitors, best operate to correct anticompetitive conduct when necessary, and on a case-by-case basis.