OUP accepted manuscript

Abstract

Unchecked, competition and IP law can get on like a house on fire—both will rage fiercely, and nothing will be left at the end. Each is a threat to the principles on which the other was founded: in the short term, competition law tends to protect consumers or weaker parties, whereas patents aim to convey their own exclusivity and market power—and, ultimately, to create a dominant position. Perhaps the reason for this disparity is the constraint of their long-term goals: the broader aims of competition law are economic, while IP exists to promote technical and creative development. Where they meet, competition and IP smash. As Alan Devlin notes in this book, for competition lawyers ‘patents create unique issues … [e]ven antitrust’s normative enquiry becomes unsettled in the patent setting. When static and dynamic effects point in different directions, where is true north?’ First and foremost, Antitrust and Patent Law is not a text about intellectual property law itself. It is about competition law, bearing on patents as its subject matter, and is concerned less with patents themselves and more with how the rights are used, enforced, bought, sold and abused.