James Madison, the fourth U.S. president and a principal drafter of the U.S. Constitution, is credited with including Article I, Section 8, Clause 8 – the Patent and Copyright Clause. This provides the basis for Congress to enact rules protecting intellectual property (“IP”) rights in the U.S. constitutional order, a unique development at its time.
The evolution of antitrust law has, over time, come into conflict with the intellectual property rights created on the basis of this article, and has caused some actors, most recently former AAG Makan Delrahim of the U.S. Department of Justice, to call for a rebalancing of the interaction between IP and antitrust rules, in favor of rights holders, notably in the case of disputes over matters such as so-called fair, reasonable and non-discriminatory (“FRAND”) licensing terms.
Broadly speaking, this “New Madison” approach has called for a cautious application of antitrust provisions as a tool to restrict IP rights and some commentators are now asking for a rejection of that principle. Such disputes are of key importance in various important sectors, not least tech and pharmaceutical markets, where the possession of an intellectual property portfolio is a key parameter of competition.
The articles in this Chronicle, written by experienced practitioners, academics, and commentators, critically assess the so-called new Madison approach, both from first principles and in terms of how it fits withi...