Antitrust laws and intellectual property (IP) rights are inherently intertwined under a common goal of encouraging innovation and competition. In fact, the 2007 US Department of Justice (DOJ) and Federal Trade Commission’s (FTC), Antitrust and Intellectual Property Rights: Promoting Innovation and Competition report states, “the patent laws effectively modify the antitrust laws to the extent, and only to the extent, of precluding liability for the mere exclusion of others from making, using, or selling the patented invention”.
While intellectual property rights do bestow a limited and specific monopoly to innovators and creators, the ability to attain such IP protection promotes the commercial pursuit of innovation. Specifically, IP rights reward market participants for the often-risky R&D efforts that ultimately (1) improve product or service quality, (2) motivate competitive response from rivals, and (3) create new markets altogether. The FTC report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, “the award of patent rights can spur stand-alone innovations by limiting free riding, facilitating commercialization of innovations, and encouraging disclosure of new ideas.”
Further, the DOJ and FTC explain in Antitrust Guidelines for Licensing of Intellectual Property, that IP licensing spurs integration and efficiencies that benefit consumers, and that the royalties associated with IP licensing provide “an incentive to invest in innovative efforts”.
The intersection of antitrust and IP rights means that neither can be assessed comprehensively in a vacuum. Instead, it is necessary to consider the concepts together, particularly as the significance of intangible assets to corporations continues to grow.
Our Credentials as Antitrust Litigation & IP Rights Experts
Ocean Tomo is uniquely qualified to support the assessment of interplay between antitrust and IP rights concepts. Ocean Tomo’s experts rely on the firm’s collective experience across practice areas to consider and address the economic impact of IP licensing in the normal course of business, the effects of IP infringement and enforcement actions, and the real-world business considerations underlying IP-driven transactions. The firm’s expertise across all facets of the IP market enables a unique perspective on the role of IP in antitrust contexts.
Ocean Tomo Expert Services in Antitrust Matters
Ocean Tomo intellectual property experts can:
- provide context for competition by analyzing the patent and licensing landscapes to assess the significance of IP owned by the parties to the competitive environment,
- identify other patent owners in the industry and the relative strength of IP portfolios,
- evaluate the availability of alternative technologies, and
- opine on competitive royalty rates and other licensing terms typical in the industry.
Meet our Antitrust Litigation & Intellectual Property Rights Experts
Our Antitrust Litigation Featured Engagements
Ocean Tomo services are built upon more than three decades of experience in the most rigorous venues – state, federal, and international courts – and spans more than 150 different industry segments. Because our past success provides the best indication of our capabilities, we are proud to feature a few representative engagements and encourage potential clients to seek references from both past clients and opposing counsel.