Innovation and Competition Policy

By Dennis Crouch

Professor Herbert Hovenkamp (U. Iowa) is the most influential US antitrust scholar and author of the most cited legal treatise on antitrust law. He has written extensively on all areas of antitrust law, including the intersection between antitrust, innovation, and intellectual property.

Although the antitrust treatise sells for over $3,000, Professor Hovenkamp recently made new casebook on innovation and competition available for a free download (subject to an open source license agreement). The casebook is entitled INNOVATION AND COMPETITION POLICY: CASES AND MATERIALS. Professor Hovenkamp introduces the book as follows:

This book … differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). The author uses this casebook for a three-unit class in Innovation and Competition Policy taught at the University of Iowa College of Law and available to first year law students as an elective.

Major topics include

  • Impact of patent scope on competition;
  • The law of tying;
  • Determining harm to innovation;
  • Competition policy in patent law;
  • Competition policy in copyright and under the DMCA;
  • Restraints on innovation;
  • Misuse of intellectual property;
  • Anticompetitive exclusion;
  • Innovation commons; and
  • Post-sale restraints that involve IP rights.

In the words of Prof. Solum, Download it while its hot!

10 thoughts on “Innovation and Competition Policy

  1. 7

    A very long time ago I told you what was going on. I thought well maybe the Political correctness is making me choose that it be other than what it was. so you pulled at this Elastic till there was no elasticity left. Over and over you spun me around like Political Spin… So I thought what do they want from me? Is it to sweep all the bad things under the Rug and then they will say OK you win?
    When I told you a long time ago.. you said I don’t know I just don’t know.. remember. But then when you thought I was out to destroy what you wanted I kept my distance.. knowing deep down she was a Trojan Horse. And then at the Jacks Game I wasn’t imagining.
    And the saddest thing is if I am damaged you ought to all be ashamed of making me a national experiment and destroying what is left my life.
    If you do anything to correct this mess. I hope the USPTO understands anyone can make something better, anyone! People should not be judged that way. You are doing a disservice to the USA.

  2. 6

    Professor Solum,
    I have a question for you. Why didn’t you go a little bit further in your Topics including Nasty Ann L, and the fact that this poor little girl who has had issues that Nasty Ann L chaired and She didn’t even get a Census.. What say Her?

  3. 5

    Akamai, pending en banc, involves a question of “contributory infringment” in the context of method claims. As such, considerations of patent misuse or potential patent misuse are inherently involved. Let me illustrate a potential problem.

    Suppose a company runs a business of packaging integrated circuits. It receives unpackaged ICs, packages them, and returns them to its customers. How such a company’s actions ever be considered patent infringement of a method claim where all it is doing is the prior art?

    To illustrate, suppose a method claims describes a new way of making ICs, but includes the old step of packaging the resulting IC as part of the claim. Is or should the IC packaging company guilty of direct or indirect infringement for performing an old step in a new method? Should the result be different if instead of returning the packaged IC to its customers, they sold the packaged ICs to others?

    This is the same problem one finds in patent misuse cases where the patentees sought to condition licenses to patents to purchase or sales of unpatented components for use in the patented combination. See, e.g., Motion Picture Patents. The 1952 Patent Act, and subsequent amendments, limited patent misuse to tying of staple items. But, is this not the practice of a step of a patented method the equivalent of a staple item of commerce?

    The en banc panel should be aware of this in making sure in its en banc holding that it does not make the practice of the prior art an infringement.

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