Hill Wellford, Mar 26, 2009
Is the Supreme Court’s economics-intensive and generalist antitrust jurisprudence beginning to affect its view of patent law? It appears that the answer is yes. Patent law has long been the ultimate in technical statutes and specialist practice. Antitrust law, in contrast although at one time it had a similar reputation has developed essentially as common law, and in recent decades has come to emphasize broad and general “effects-based” analysis: an outcome-oriented, case-by-case method that grounds liability decisions directly in an analysis of conduct’s economic effects, and that generally eschews special rules and formalized tests. The Supreme Court and the antitrust enforcement agencies have accelerated this process in the past three years, striking down many per se (automatic) rules of liability and conduct-specific tests. Now, there is some evidence that that Supreme Court’s skepticism of special antitrust rules, and emphasis on economic effects, is influencing the Court’s patent law decisions.