Is Antitrust A Proper Tool For Setting Patent Policy?

I was honored to speak at an event hosted by the Hoover Institution at Stanford University, in conjunction with Global Competition Review, regarding the intersection of antitrust and IP law. My esteemed co-panelists, including Mark Lemley, provided a variety of insights as to the role that antitrust should play in setting IP policy.

Despite our diverse perspectives, we all largely agreed that antitrust belongs at the periphery of IP law, and that antitrust concerns should only come into play where the patent holder seeks a greater advantage or monopoly than a patent itself confers, e.g., where a branded pharmaceutical company and generic collude as part of a "pay for delay" arrangement. Antitrust should have little say, by contrast, with respect to the proper interpretation or application of FRAND commitments—an issue that is largely a private contractual dispute, and not a basis for government antitrust intervention.