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Grimes, Warren S. --- "Making Antitrust and Intellectual Property Policy in the United States: Requirements Tie-ins and Loyalty Discounts" [2008] ELECD 253; in Drexl, Josef (ed), "Research Handbook on Intellectual Property and Competition Law" (Edward Elgar Publishing, 2008)

Book Title: Research Handbook on Intellectual Property and Competition Law

Editor(s): Drexl, Josef

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420475

Section: Chapter 11

Section Title: Making Antitrust and Intellectual Property Policy in the United States: Requirements Tie-ins and Loyalty Discounts

Author(s): Grimes, Warren S.

Number of pages: 23

Extract:

11 Making antitrust and intellectual property
policy in the United States: requirements
tie-ins and loyalty discounts
Warren S. Grimes



1 Introduction
Competition law and intellectual property (IP) law are at times complemen-
tary, at other times rivalrous. Finding the right policy balance is at once a
formidable but vital task. At stake is achieving the right flow of IP incentives,
a balance that encourages innovation without unduly undermining competition
and the very innovation that IP is designed to promote.
This chapter examines how antitrust policy that bears on intellectual prop-
erty is established and enforced in the United States. It begins by describing
the overarching debate concerning the proper reach and interpretation of intel-
lectual property rights. It then describes US agencies and courts that play a
major role in establishing competition policy. Finally, it examines two
substantive areas, requirements tie-ins and loyalty discounts on strongly
branded products, to gain greater perspective on whether the mechanisms for
establishing IP-related competition law policy are working well. Because of
the strong public-choice bias that favors creation and extension of IP rights,
the broader public interest in competition and constraining overly broad IP
protection is often under-represented. The interaction between IP and compe-
tition law works best when the two US antitrust enforcement agencies, the
Antitrust Division of the Department of Justice (DoJ) and the Federal Trade
Commission (FTC), are vigorous advocates for competition.

2 The debate concerning the reach of IP rights
The antitrust and intellectual property ...