| Abstract: | This article develops a novel theory by which to construe theinteraction between the patent and antitrust laws. The rulesof these respective disciplines are often portrayed as conflictingin means, yet harmonious in purpose. Although the intellectualproperty and antitrust laws have ostensibly divergent viewson the role of competition, their interaction is typically limitedto one of constraint. More specifically, antitrust rules havebeen (poorly) designed to limit the exclusivity inherent ina patent grant to the claimed invention alone. This article,however, articulates a new vision for the role of antitrust:it posits that competition rules operate as a stochastic regulatorof exclusionary patent rights. The Sherman Act constrains patentees'efforts to positively transform the probabilistic nature oftheir intellectual property rights through contract. Yet, becausethe empirical calculation of optimal innovation rates is anelusive, if not Sisyphean, task, the normative desirabilityof the foregoing fact is abstruse. Nevertheless, policymakers'inability to pinpoint precisely the ex post rewards requiredto trigger ideal levels of ex ante investment need not bindour hands to inaction. If contemporary rates of innovation aredeemed acceptable (even if not necessarily perfect), there maybe ways to trigger equivalent levels of ex ante investment withlower social cost. In this regard, it is clear that currentlyenacted competition rules significantly accentuate the uncertaintysurrounding patents' apotropaic effect. Concluding that contractssecuring otherwise stochastic rights may be highly desirable,the article calls for the incorporation of this concern intocontemporary rules, with modest substantive effect, and furtheradvocates a qualified antitrust immunity for "gold-plated" patentsif and when they are introduced. |
