Herbert Hovenkamp, Competition for Innovation, 2012 Colum. Bus. L. Rev. 799.
Both antitrust and IP law are limited and imperfect instruments for regulating innovation. More fundamentally, antitrust law and intellectual property law have looked at markets in very different ways. Further, over the last three decades, antitrust law has undergone a reformation process that has made it extremely self-conscious about its goals. While the need for such reform is at least as apparent in patent law, very little true reform has actually occurred. This article briefly examines three areas in which antitrust has something useful to contribute to innovation policy. The first concerns the relationship between innovation and market structure. Second is the lesson that IP law can learn from the severe revision in remedies doctrine that antitrust has developed in order to align private antitrust enforcement with antitrust law’s underlying goals. The third concerns the way that antitrust should deal with deficient intellectual property rules that grant far too many rights and defines them in excessively ambiguous or overly broad ways. Managing competition for innovation is a complex task, made more complex and difficult by deficient intellectual property policies. Although courts are not perfect institutions either, we would probably have a better and more defensible intellectual property system if we left somewhat more to the courts and less to the statutes.
Ben V. & Dorothy Willie Professor of Law and History, University of Iowa.