Antitrust law and patent law are legal tectonic plates –
always in motion, occasionally converging, occasionally diverging,
and occasionally moving in parallel relation. As patent suits
have recently multiplied, the antitrust enforcement policies have
again responded – for example, imposing pro-competition rules
on patent case settlements, on abuses in standard setting
situations, and on practices used to obtain patents in the first
instance.
When the two disciplines' plates converge, we see the direct
clash of the constitutional grant of a patent monopoly confronting
the statutory edict against monopoly. When the plates
diverge, we see that antitrust law has no bearing on many of the
important patent doctrines of obviousness, anticipation, best mode,
claims construction and the like. And when the doctrines
transform – moving sideways in relation to each other –
we see often compatible principles in royalty calculation,
innovation promotion, and licensing
