Entering the Innovation Twilight Zone: How Patent and Antitrust Law Must Work Together

Posted by Social Science Research Network

Entering the Innovation Twilight Zone: How Patent and Antitrust Law Must Work Together Jeffrey I. D. Lewis (Fried, Frank, Harris, Shriver & Jacobson LLP) & Maggie Wittlin (Columbia University)

Abstract: Patent law and antitrust law have traded ascendancy over the last century, as courts and other institutions have tended to favor one at the expense of the other. In this Article, we take several steps toward stabilizing the doctrine surrounding these two branches of law. First, we argue that an optimal balance between patent rights and antitrust enforcement exists that will maximize consumer welfare, including promoting innovation and economic growth. Further, as Congress is the best institution to find this optimum, courts should enforce both statutes according to their literal text, which grants absolute patent rights but allows for more discretion in antitrust enforcement. Second, we propose three possible reasons for the historical conflict between these regimes: cultural cognition, political economy, and federal court structure. As a result, we propose two stabilizing solutions: research into culturally depolarizing communication techniques and a two-court “Innovation Circuit.”