Tuesday, September 8, 2020

Cotter on Antitrust, Intellectual Property, and Dynamic Efficiency

My essay Antitrust, intellectual property, and dynamic efficiency: An essay in honor of Herbert Hovenkamp, which will be published in a forthcoming book (Herbert Hovenkamp Liber Amicorum, N. Charbit et al. (eds.), 2020), is now available in the September 2020 issue of Concurrences.  Here is a link to the article on Concurrences' website, here is a link to ssrn, and here is the abstract:
This essay argues that, while intellectual property (IP) and antitrust often operate as complementary bodies of law, in some residuum of cases there will be widespread disagreement among forecasters about whether antitrust constraints on the exercise of IP rights are likely to inhibit or promote innovation. Among the most contentious of these at present are cases involving the assertion of FRAND-committed standard-essential patents (SEPs) and, relatedly, joint conduct on the part of firms that belong to standard development organizations (SDOs). To assist policymakers in coming to principled decisions in matters such as these, I propose and defend three guiding principles: (1) do not assume that stronger IP rights/weaker antitrust enforcement necessarily promotes innovation; (2) do consider whether other bodies of law are up to the task of addressing the potential severity of the harm alleged; and (3) filter out ideology and self-interest as much as possible. Although these recommendations will not reconcile all conflicting views, and may not provide definitive answers regarding whether or how to proceed, I argue that the quality of the ongoing debate would improve if enforcers made an effort honestly to engage them.

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