Document Type

Article

Publication Title

DePaul Law Review

Abstract

The licensing of patents and the marketing of patented products run afoul, at times, of the antitrust laws. Exploitation of a patent has characteristics similar to the exploitation of monopoly power. The courts have established a rather odd set of rules to limit patent exploitation. The United States Supreme Court, in particular, has applied various, sometimes contradictory, rationales in its rulings. Part I of this article describes some of the Supreme Court case law in this area and offers an alternative economic analysis of patent exploitation. It concludes that the Court, in general, has treated the marketing of patented products and processes too harshly, and, as a result, has lost sight of the purposes of antitrust law in this area. In 1979, the Supreme Court held in Broadcast Music, Inc. v. CBS, that the marketing of blanket licenses for the performance of copyrighted music was not a violation of the antitrust laws. Part II of this article describes how Broadcast Music, though not a patent case, should alter the way the antitrust laws limit patent exploitation. The Court's rationale in Broadcast Music requires courts to take a hard look at a patentee's conduct before allowing the antitrust laws to bite. A patentee's marketing activities, although analogous to monopolistic exploitation, are important production-enhancing elements in the fragile process of creating intellectual property; a process that Congress has specifically sanctioned. Building on the current Justice Department Merger Guidelines, Part III proposes a framework for this "hard look."

First Page

825

Volume

35

Publication Date

1986

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