By Thomas F. Cotter (University of Minnesota)
This essay argues that, while intellectual property (IP) and antitrust often operate as complementary bodies of law, in some residuum of cases there will be widespread disagreement among forecasters about whether antitrust constraints on the exercise of IP rights are likely to inhibit or promote innovation. Among the most contentious of these at present are cases involving the assertion of FRAND-committed standard-essential patents (SEPs) and, relatedly, joint conduct on the part of firms that belong to standard development organizations (SDOs). To assist policymakers in coming to principled decisions in matters such as these, I propose and defend three guiding principles: (1) do not assume that stronger IP rights/weaker antitrust enforcement necessarily promotes innovation; (2) do consider whether other bodies of law are up to the task of addressing the potential severity of the harm alleged; and (3) filter out ideology and self-interest as much as possible. Although these recommendations will not reconcile all conflicting views, and may not provide definitive answers regarding whether or how to proceed, I argue that the quality of the ongoing debate would improve if enforcers made an effort honestly to engage them.