Afterword: The role of the competition community in the patent law discourse

Antitrust Law Journal

Volumn 69, Issue 3, 2001, Pages 841-849

  Greene, Hillary ^a  

^a FEDERAL TRADE COMMISSION   (United States)

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EID: 0036353266     PISSN: 00036056     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (28)

1. See, e.g., Eugene Crew, Microsoft's Copyright Defense 233, 242-43, in INTELLECTUAL PROPERTY ANTITRUST (PLI Patents et al. Course Handbook Series No. G-00CZ 2000) (noting the importance of "shifting presumptions and burdens of proof in deciding cases involving "potential conflict between antitrust and intellectual property law").
2. The consumer welfare perspective is often contrasted with a natural or moral rights perspective. See, e.g., John Shepard Wiley, Jr., Copyright at the School of Patent, 58 U. CHI. L. REV. 119 (1991). The consumer-oriented perspective believes "the point of patent . . . law is to create incentives for producers so that they will serve consumers' needs." Id. at 139. The producer-oriented perspective views the purpose of patents as being to "vindicate the moral entitlements that creators earn through their creation." Id. This Afterword will address the consumer welfare perspective. As one commentator has observed: [T]his debate about values [whether to adopt a consumer welfare or producer oriented perspective] is exciting mostly in the abstract. The two analyses tend to converge as a practical matter, because law governing innovation policy usually must treat creators fairly in order to give them incentives to act in ways that benefit consumers. Id. at 140.
3. Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d 1572, 1576 (Fed. Cir. 1990) (further characterizing antitrust and patent law as "complementary" regimes).
4. Clearly this discourse must be two-way, thereby enabling the competition community to learn from the patent community. Moreover, this discussion must be part of a broader public policy debate. Associate Justice Stephen Breyer has expressly recognized the value of a social "conversation" regarding how well patent law is accomplishing its "basic job" of "developing financial incentives that, as they operate in the marketplace, will encourage useful discovery and disclosure without unduly restricting dissemination of those discoveries . . . ." He believes that, "[t]he best answers will arise when the legal issue is focused by previous conversations between science, business, economics, and law. Neither courts nor legislatures may yet find wise answers in the absence of such earlier interaction." Associate Justice Stephen G. Breyer, U.S. Supreme Court, Genetic Advances and Legal Institutions, Plenary Session Speech Before the Whitehead Policy Symposium, Genes and Society: Impact of New Technologies on Law, Medicine, and Policy 5 (May 2000), available at http://classes.lls.edu/fall2001/biotech/materials/breyer.
5. Graham v. John Deere Co., 383 U.S. 1, 5 (1966).
6. Edward C. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1787-1836, 8O J. PAT. & TRADEMARK OFF. SOC'Y 11, 23-24 (1998).
7. Id.
8. FIVE HUNDRED YEARS OF PATENTS: TUDORS AND STUARTS (UK Patent Office), available at www.patent.gov.uk/patent/fivehundred/tudors.htm. Section 6 excepted patents øfor a term of 14 years or under hereafter to be made of the sole working or making of any manner of new manufactures within this Realm to the true and first inventor." Id. Such monopolies would not be "contrary to the law nor mischievous to the State by raising prices of commodities at home or hurt of trade." Id.
9. Walterscheid, supra note 6, at 27
10. Id. at 23 (The Framers of the Constitution sought "[t]o insert essential principles only, lest the operations of government should be clogged by rendering provisions permanent and unalterable, which ought to be accommodated by time and events. . . .").
11. Howard T. Markey, Why Not the Statute?, 65 J. PAT. & TRADEMARK OFF. SOC'Y 331 (1983).
12. Id. at 333.
13. Id. at 332.
14. Glen P. Belvis, An Analysis of the En Banc Decision in Festo Corp. v. Shoketsu, Kinzou Kogyo Kabushiki Co. and the Doctrine of Equivalents, 11 FED. CIR. B.J. 59, 101 (2001-2002). See also Glynn S. Lunney, Jr., E-Obviousness, 7 MICH. TELECOMM. & TECH. L. REV. 363, 366-67 (2000-2001).
15. Glen P. Belvis, An Analysis of the En Banc Decision in Festo Corp. v. Shoketsu, Kinzou Kogyo Kabushiki Co. and the Doctrine of Equivalents, 11 FED. CIR. B.J. 59, 101 (2001-2002). See also Glynn S. Lunney, Jr., E-Obviousness, 7 MICH. TELECOMM. & TECH. L. REV. 363, 366-67 (2000-2001).
16. See, e.g., Edmund W. Kitch, Elementary and Persistent Errors in the Economic Analysis of Intellectual Property, 55 VAND. L. REV. 1727 (2000) (discussing such "linguistic confusion").
17. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 754 (10th ed. 1985).
18. United States v. Grinnell Corp., 384 U.S. 563, 570-01 (1966) (Monopolies are lawful, provided their acquisition and retention results from "growth or development as a consequence of superior product, business acumen, or historical accident."); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 479 n.29 (1992) (identifies patents as among the lawful and natural means for acquiring a monopoly).
19. U.S. Dep't of Justice and Federal Trade Comm'n, Antitrust Guidelines for the Licensing of Intellectual Property § 2.2 (1995), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,132.
20. Id.
21. Lunney, supra note 14, at 366-67. If one believes that patents impose only minimal, if any, dead-weight loss, that still must be accounted for when assessing the effect of these exclusive grants. See, e.g., Kitch, supra note 15: [I]ntellectual property rights systems have costs as does any system of property rights. Any system of property rights involves costs in defining the scope of the rights, and detecting and preventing trespass and in foreclosing particular productive opportunities that might be possible if the property system did not exist. Any system of property rights is appropriately subject to examination as to whether the benefits of the property system outweigh these costs, but that examination has nothing to do with the social welfare loss caused by economic monopolies. Unfortunately, the monopoly issue has served to distract attention from this conceptually simpler, yet important, issue. Id. at 1733.
22. Graham v. Deere, 383 U.S. at 11 (quoting Thomas Jefferson).
23. Among the most extensive examinations currently underway is the National Academies' Intellectual Property Rights in a Knowledge-Based Economy, available at http://www4. nationalacademies.org/PD/step.nsf. The National Academies is a non-governmental organization "created by the federal government to be an advisor on scientific and technological matters." The study considers "the impact of IPR [Intellectual Property Rights] policies on . . . initial and subsequent innovation, and competition and industry structure."
24. Remarks Before The National Academies' Committee on Intellectual Property Rights in the Knowledge-Based Economy, supra note 21, Conference on The Operation of the Patent System: Insights from New Research at 315-16 (Oct. 22, 2001). Transcript available at http://www4.nationalacademies.org/PD/step.nsf/files/transcript1022.pdf/ $file/transcript1022.
25. See, e.g., Richard J. Gilbert & Steven C. Sunshine, Incorporating Dynamic Efficiency Concerns in Merger Analysis: The Use of Innovation Markets, 63 ANTITRUST L.J. 569, 581 (1995) (Though generally not conclusive, they determine there is evidence to support that "protection from competition is inimical to technological progress."); 1 FEDERAL TRADE COMM'N STAFF, ANTICIPATING THE 21ST CENTURY: COMPETITION POLICY IN THE NEW HIGH-TECH, GLOBAL MARKETPLACE ch. 6, at 16 (1996) ("[T]he information currently available supports antitrust enforcement that is assertive in maintaining competition as a spur to innovation, yet cautious to avoid unwarranted interference with intellectual property incentives for innovation.").
26. See, e.g., Richard J. Gilbert & Steven C. Sunshine, Incorporating Dynamic Efficiency Concerns in Merger Analysis: The Use of Innovation Markets, 63 ANTITRUST L.J. 569, 581 (1995) (Though generally not conclusive, they determine there is evidence to support that "protection from competition is inimical to technological progress."); 1 FEDERAL TRADE COMM'N STAFF, ANTICIPATING THE 21ST CENTURY: COMPETITION POLICY IN THE NEW HIGH-TECH, GLOBAL MARKETPLACE ch. 6, at 16 (1996) ("[T]he information currently available supports antitrust enforcement that is assertive in maintaining competition as a spur to innovation, yet cautious to avoid unwarranted interference with intellectual property incentives for innovation.").
27. See, e.g., William E. Kovacic, Creating Competition Policy: Betty Bock and the Development of Antitrust Institutions, 66 ANTITRUST L.J. 231, 242-44 (1997).
28. But see, e.g., Mark D. Janis, Second Tier Patent Protection, 40 HARV. INT'L L.J. 151, 210 (1999) (stating that Edmund Kitch's prospect theory "calls for a soft obviousness standard" or the elimination of or reduction in the importance of the obviousness criterion to better promote innovation).