Apples and Oranges: Comparing Assertions of SEPs and Differentiating Patents from an Antitrust Perspective

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Jay Jurata, Adya Baker, Mar 31, 2015

Intellectual property and antitrust laws share a common goal of fostering innovation while protecting competition. In the United States, the Patent Act bestows on the patent holder the right to exclude others from making, using, selling, or importing the patented invention, as well as the right to exploit the patented invention through licensing it to others. The Sherman Antitrust Act, while targeted toward anticompetitive conduct, does not restrict the long recognized right to freely exercise one’s independent discretion to deal, or to announce in advance the circumstances under which he or she will refuse to deal. Indeed, the possession of monopoly power, and the concomitant charging of monopoly price, is not only lawful; it is an important element of the free-market system.

Consequently, patent rights are as fundamental to preserving research and innovation as the antitrust laws are to preserving free market competition. Together these complementary bodies of law form a system that rewards risk taking and entrepreneurialism necessary for economic growth.

Intellectual property and antitrust laws also share a common goal of preventing conduct that harms competition. In the ordinary course, obtaining, licensing, and enforcing patents is beneficial conduct that should be encouraged, not impeded, by antitrust law. There are situations, however, where separating co…

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