A ’primarily property’ presumption is – still – really needed for the IP/antitrust interface

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Antitrust discussions in the U.S. have a long tradition of describing intellectual property (IP) – primarily patents and copyrights – in unqualified terms of “monopoly”. Although there have been substantial efforts over the past two decades to pull back from this automatic association, the presumption of unqualified monopoly continues to appear in important legal decisions — as well as in legal and social sciences academic discussions — that involve IP. There is another place where these decisions and discussions might start: with a presumption that any IP is “primarily property” – albeit with some important distinctions that separate IP from “garden variety” tangible property and that raise the possibility of market power in some instances. This paper explores the important similarities – and differences – between “garden variety” property, such as real estate, and IP; it concludes that the similarities are substantial, so that the presumption that IP is “primarily property” is a reasonable alternative starting point for antitrust/IP discussions. It then discusses some beneficial differences that this alternative starting point could have made and/or could still make.