Intellectual Property v. Antitrust: A False Dilemma

Intellectual Property v. Antitrust: A False Dilemma

By Ronald S. Katz, Janet Arnold Hart and Adam J. Safer

I. Introduction

Many courts and commentators have suggested that there is a conflict between intellectual property rights and the antitrust laws. In reality, however, the two are not in conflict. There is a simple formula that will ensure that the purposes of each statute are fulfilled. Where there is one market involved, a patent and/or copyright holder has the exclusive right to exploit his invention. However, where two markets exist and the patent or copyright holder seeks to extend his "legal monopoly" into the second market, antitrust liability is likely.

Although not previously stated in such terms, the concept is not a novel one. In 1953 the Supreme Court held in Times-Picayune 1 that power gained through some natural and legal advantage, such as a patent or a copyright, can give rise to antitrust liability if "a seller exploits his dominant position in one