Antitrust and Intellectual Property: Unresolved Issues at the Heart of the New Economy

Abstract

The New Economy differs in degree rather than kind from the "old" economy. Part II of this discussion examines the key differences that define the New Economy. Part Ill turns to several implications of those differences as they pertain to antitrust enforcement. I argue that the differences do not justify sweeping generalizations that antitrust enforcement has no place in the New Economy, but do require antitrust enforcement to make adjustments and exercise sensitivity towards intellectual property issues on a case-by-case basis. The goal of a coherent overall competition policy, in deciding both what conduct to enforce against and what remedies to require, should be to achieve an appropriate balance between the complementary legal regimes of intellectual property and antitrust. Part IV examines several examples of recent antitrust enforcement decisions involving intellectual property. Without addressing the ultimate merits of individual decisions, I find that antitrust enforcement has generally evolved in recent years in a way that pays heed to the distinctive characteristics of the New Economy. These decisions demonstrate a concerted attempt to give reasonable, fact-specific consideration to both incentives and opportunities to innovate. Finally, to supplement the preceding review of substantive issues, Part V examines the institutional challenges posed to antitrust enforcement by the New Economy.

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