The Intersection of Antitrust Law and Intellectual Property Rights Under the New Obama Administration

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Christopher R. Leslie, Jan 20, 2009

Political predictions are fraught with peril. Correctly foretelling what policies a new president will pursue and whether his efforts will prove successful is particularly difficult for matters that were not discussed extensively in stump speeches or the presidential debates. The intersection of antitrust law and intellectual property (“IP”) is a niche that did not command national attention during the lead-up to the election. But evidence exists about President Obama’s general views on antitrust law and on patent reform. From this, we have a basis for intuiting his likely approach to several issues at the intersection of these two areas of law. Over the previous several years, the balance between antitrust law and intellectual property rights has shifted in favor of the latter. While not addressing this balance specifically, the Obama campaign promised to pursue different approaches in each of these individual areas of law. With respect to intellectual property, the Obama campaign noted the importance of protecting intellectual property, while emphasizing the “need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated.” Candidate Obama also advocated patent reform designed “to improve patent quality.” While short on particulars, the rhetoric suggests a greater wariness of patents issued by the U.S. Patent and Trademark Office (“PTO”), which could translate into more government scrutiny and perhaps challenges to patents.