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Antitrust and Patent Law by Devlin, Alan (17th March 2016)

Part III Understanding the Patent–Competition Law Interface, 5 The Relationship between Patent and Antitrust Law

Edited By: Lars Kjølbye

From: Antitrust and Patent Law

Alan Devlin
Edited By: Lars Kjølbye (Consultant editor)

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 15 December 2018

Subject(s):
European Union — Copyright — Rights — Royalties — United States

This chapter explores the issue of how competition policy governs intellectual property rights (IPRs). It addresses whether antitrust performs a limiting function, applying only to anticompetitive effects falling outside the scope of a patent. Showing that the answer is no, it examines how competition and patent law actually intersect. It considers how recent US and EU decisions shed light on their relationship, and articulates a theory governing doctrine in this space. It argues that a better way to understand the antitrust–patent intersection is to treat each of the two systems as sovereign—that is, mutually exclusive in application—but to discern discrete roles for each. The patent-scope approach, which relies on claim construction to identify lawful anticompetitive restraints, has one thing right: it tries to carve out non-overlapping roles for the competition and IP laws.

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