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.

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