The Patent-Antitrust Intersection: A Reappraisal

Abstract

The conflict between antitrust law and patent policy has incessantly perplexed courts and commentators. In this Article, Professor Kaplow develops and analyzes a conceptual solution to the patent-antitrust puzzle. This analysis is applied in a number of familiar contexts, and the resulting conclusions call into question much of the earlier analysis of these issues. Both the development of the model and the attempt to apply the theoretical framework in practice indicate that the problem is far more complex than has previously been realized. This Article is an attempt to clarify the issues, but in the end it may reinforce existing pessimism concerning the possibility of untangling the patent-antitrust intersection. The discussion also illustrates the difficulty of applying economic analysis to concrete problems in a manner that yields confident conclusions.