Document Type



Antitrust and Trade Regulation | Intellectual Property Law


The Federal Circuit is the most visible point of the intersection between competition and patent law. When a single case contains both competition and patent issues, precedents of that court, including those pertaining to governing legal burdens or presumptions, will be critical. It is worth considering whether and how actual or assumed consumer welfare trade-offs are reflected in those decisions. Additionally, the basic decision to confer patents, and the attendant choices regarding their breadth, scope, and other aspects, also reflect social value judgments that directly implicate competition. The competition community can help both to focus attention upon and to illuminate certain consumer welfare trade-offs that inhere in our system for both granting patents and resolving patent disputes. Clarifying the nature of the trade-offs patents require, in turn, will help society refine its treatment of issues implicating both patent and competition law. The importance of these trade-offs, coupled with the uncertainty surrounding them, may explain why the legal and economic assumptions upon which the patent system is based are undergoing a broad-based review in academia and elsewhere. Given the important role that patent protection plays in the economy, and the fact that both patent and antitrust laws are intended to promote consumer welfare by encouraging innovation, industry and competition,' the competition community has an affirmative obligation to participate in this review. Such an interdisciplinary discourse between the patent and competition communities is essential if society is to best promote innovation. This Afterword focuses on the role the competition community, through an understanding of antitrust law and its economic underpinnings, can play in patent policy debate. Towards that end, three distinct aspects of the discourse surrounding patent trade-offs are analyzed: (1) how the constitutional underpinning of the patent system itself recognizes patents as trade-offs; (2) how the attempted banishment of the word monopoly may obscure those trade-offs; and (3) how patents are assumed to enhance innovation, without adequate recognition of the potential trade-offs involved. Significantly, this assumption is extended to specific aspects of patents, as well as to the patent system as a whole. Ideally, increased clarity in identifying the trade-offs patents impose will underscore the importance of the competition community's role in a broader social assessment of the consequences of those trade-offs.