IP and Antitrust: An Analysis of Antitrust Principles Applied to Intellectual Property Law

IP and Antitrust addresses the relationship between intellectual property law and federal antitrust law. Most antitrust problems arise in the patent area rather than copyright or trademarks. IP and Antitrust covers antitrust issues such as market power, monopolization, tying, exclusive dealing, and resale price maintenance as they relate to patents, trademarks, and copyrights. The most difficult issues arise in patents, where cross licensing and refusals to license can create antitrust issues.

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PART A: Competition Policy and the System of Intellectual Property Rights
  • Introduction
  • The U.S. Intellectual Property System: Key Aspects for the Antitrust Interface
  • Misuse
  • Intellectual Property and Market Power
  • Jurisdictional and Procedural Issues Governing Antitrust/IP Claims
  • Remedies for Anticompetitive Abuses of Intellectual Property Rights
  • Anticompetitive Settlement of Intellectual Property Disputes


PART B: Monopolistic Practices Involving Intellectual Property Rights
  • Monopolization
  • Improper Enforcement of Intellectual Property Claims
  • Innovation and Product Changes
  • Unilateral Refusals to License
  • Patent and Other Intellectual Property Acquisitions; Non-use


PART C: Vertical Integration and Related Licensing Practices by Intellectual Property Holders
  • Vertical Practices Involving Intellectual Property Rights: Preliminary Issues
  • Tying, Exclusive Dealing and Related Licensing Practices
  • Package Licensing, Blanket Licenses and Block-Booking
  • Anticompetitive Royalty Provisions
  • Resale Price Maintenance and Vertically Imposed Nonprice Restraints
  • Grantback Provisions


PART D: Horizontal Restraints Involving Intellectual Property Licensing
  • Justifications and Basic Competitive Concerns
  • Price Restricted Licenses and the General Electric Rule
  • Output Restricted Licenses
  • Horizontal Market Division and Other Nonprice Restrictions
  • Cross-Licensing and Patent Pools
  • Intellectual Property and Standard-Setting Organizations
  • Research and Production Joint Ventures: National Cooperative Research and Production Acts


PART E: Competition and Intellectual Property Licensing in Global Markets
  • International Standards for the Intellectual Property/Antitrust Interface
  • Application of U.S. Antitrust Law to International Licensing Arrangements
  • The Intellectual Property/Competition Law Interface: Europe
  • The Intellectual Property/Competition Law Interface: Canada

Appendix A: Selected Federal Statutes

Appendix B: Antitrust Guidelines for the Licensing of Intellectual Property

Appendix C: Antitrust Enforcement Guidelines for International Operations

Appendix D: International Materials

Appendix E: European Materials

Appendix F: Canadian Materials

  • Expert legal guidance on complex antitrust issues
  • Patent and other intellectual property misuse
  • Infringement suits as antitrust violations
  • Remedies for anti-competitive abuses of IP rights
  • Issues involving antitrust/intellectual property litigation
  • IP/Competition Law Interface in the EU and Canada
  • Package licensing and cross licensing
  • Price fixing
  • Mergers involving IP rights

Contributor(s)

Herbert Hovenkamp is the Ben V. & Dorothy Willie Professor of Law at the University of Iowa, where he teaches antitrust law, intellectual property, real property, torts, and American legal history. He is a member of the American Academy of Arts and Sciences, and in 2008 he won the Justice Department's prestigious John Sherman Award for his lifetime contributions to antitrust law. Hovenkamp is the author of some one dozen books and approximately 80 articles. His principal writing includes Antitrust Law: An Analysis of Antitrust Principles and Their Application (formerly with the late Phillip E. Areeda and the late Donald F. Turner) (4th ed. 2013); The Antitrust Enterprise: Principle and Execution (2006); Federal Antitrust Policy: The Law of Competition and Its Practice (3d ed. 2005); and Enterprise and American Law, 1836-1937 (1991). He has consulted on numerous antitrust cases for the federal government, various state governments, and private plaintiffs.

Mark A. Lemley is William H. Neukom Professor of Law at Stanford Law School and the director of the Stanford Program in Law, Science and Technology. He teaches intellectual property, computer and internet law, patent law, trademark law, antitrust, and remedies. He is the author of seven books (all in multiple editions) and 153 articles on these and related subjects. His works have been cited more than 225 times by courts, including 11 United States Supreme Court opinions, and more than 14,000 times in books and law review articles, making him the most-cited scholar in IP law and one of the five most cited legal scholars of all time; a 2012 empirical study named him the most relevant law professor in the country.

He is a founding partner of Durie Tangri LLP, where he litigates and counsels clients in all areas of intellectual property, antitrust, and internet law. His clients include Comcast, Genentech, DISH Network, Google, Grokster, Guidewire, Hummer Winblad, NetFlix, Newegg, and the University of Colorado.  Mark has been named California Lawyer's Attorney of the Year twice (in 2005 and again in 2015), Best Lawyers’ San Francisco IP Lawyer of the Year (2010), and a Young Global Leader by the Davos World Economic Forum (2007). He has been recognized as one of the top 50 litigators in the country under 45 by the American Lawyer (2007), one of the 100 most influential lawyers in the nation by the National Law Journal (2006 and 2013), one of the 10 most admired attorneys in IP (2010) by IP360, one of the 25 most influential people in IP (2010) by the American Lawyer.

Mark clerked for Judge Dorothy Nelson on the U.S. Court of Appeals for the Ninth Circuit. Until January 2000, he was the Marrs McLean Professor of Law at the University of Texas School of Law, and until June 2004 he was the Elizabeth Josselyn Boalt Professor of Law at the Boalt Hall School of Law, University of California at Berkeley. 

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