The Intersection of Patent Law and Competition Policy

To view the video recording of this event, click here.

For a report summarizing the conference written by Reginald Nubine and Nick Venetz, Click Here.

The Sherman Antitrust Act is often called a “common law” statute, with courts expected to interpret broad phrases—restraint of trade, for example. The Patent Act, which is reasonably sparse on statutory language, is increasingly subject to contestable and very significant judicial interpretations of its key provisions. In this conference, we will evaluate how competition policy and patent law intersect, and the role of courts in this process.

In the America Invents Act, the U.S. Congress made the decision to focus on the institutional arrangements of patent law, focusing intently on how the U.S. Patent and Trademark Office (PTO) operates, with little focus on substantive patent law doctrines. This decision reflects the strategy of allowing the courts—with the aid of guidance from the PTO—to develop the substantive rules of patent law. With regard to the important questions of the breadth of patents—notably, whether business methods, software, or human genes should be covered by patents-Congress is, in effect, authorizing, indeed requiring, the common law approach.

Common law jurisprudence has both institutional advantages and disadvantages. It is flexible, adaptive and well-suited to focus on the precise facts of a controversy. But, in a time when businesses often call for certainty in the content of governmental policy, it can also be unpredictable.

Our conference will examine both the institutional and substantive issues raised in the relationship between competition policy and patent law. First, we will consider the institutional roles of the PTO, the Federal Government, and the Judiciary. Second, we will look at the substantial doctrinal questions of patent law, examining the scope of patentability (under Section 101 of the Patent Act and other relevant policy measures) and other relevant policy levers available to courts under the Patent Act. Third, we will introduce competition law to the mix, asking how the two doctrines relate, conflict and can be conformed. The importance of this intersection is made plain by two simple propositions: Patent law creates lawful, if limited, monopolies. Competition law, especially Section 2 of the Sherman Act, prohibits certain actions to maintain a market monopoly. Finally, with the lessons of the three previous panels in mind we will take a close look at one specific industry – wireless communications, using it as an instructive case study in how different institutional actors are shaping the nature and dimension of competition in this sector.

To discuss all of the above, we will bring together a range of top-flight policymakers, academics, judges, and practitioners.