This note puts a new spin on a longstanding subject of scholarship and controversy in the law: the conflict between the patent and antitrust laws in the United States. The author examines this conflict in the context of monopoly leveraging cases. Since patents are a unique and powerful tool that companies use to gain advantage in the marketplace, they seem to allow the owner to engage in behavior which amounts to monopoly leveraging. However, such conduct is prohibited under the antitrust laws, specifically by Section 2 of the Sherman Act. If a patent exists to give its owner certain commercial rights and advantages, how can the owner's use of these powers be simultaneously proscribed by another body of law? This note looks at this inherent conflict and how courts have sought to deal with it. Looking at the Ninth Circuit's treatment of this very problem in the Kodak II case, the note argues that although there is a facial conflict between patent and antitrust, a meaningful look at the policies and goal underlying the two bodies of law allows for a reconciliation between the two.
David A. Schnider,
Licensed to Kill: The Battle between Patent and Antitrust in Monopoly Leveraging Cases,
20 Hastings Comm. & Ent. L.J. 857
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol20/iss4/4