"Antitrust Law And Intellectual Property: Intersection Or Crossroad?"

Originally published in The Computer & Internet Lawyer

It is traditional in beginning an article on antitrust law and intellectual property to note the tension—or, as some would put it, the conflict— when the two intersect. And there is certainly support in the earlier case law for that point of view. As the Second Circuit observed in SCM Corp. v. Xerox Corp. , ¹ the antitrust and intellectual property laws "necessarily clash . . . the primary purpose of the antitrust laws to preserve competition can be frustrated, albeit temporarily, by a holder's exercise of the patent's inherent exclusionary power during its term."

In this last two decades, however, a fundamental change in legal perspective has gradually taken place. The courts have provided greater clarity on the exclusionary rights of holders of patents and other intellectual property,² and the federal enforcement agencies have made it their stated policy to treat IP as essentially comparable to any other