Introduction

Can antitrust protect the global commons from the excesses of intellectual property protection?

Antitrust law might be seen as a natural tool to limit excessive IP monopolies, for antitrust law protects competition and competition is the antithesis of monopoly. This chapter gives small comfort, however, to those who hope to restrike a balance in favor of more antitrust and less intellectual property protection. The most obvious channels through which antitrust could assert greater dominance over intellectual property protections (e.g., an antitrust duty to license) are not available in many or most jurisdictions. The chapter ends by exploring one less obvious channel wherein antitrust law might modestly push back the boundaries of undue IP protection; namely, limiting the antitrust doctrine of immunity for petitioning the government for an anticompetitive measure or outcome. The cases drawn upon are from the United States, but the doctrine of immunity is shared by most antitrust jurisdictions in the world.

The point is a small one and is raised not because it could give great relief to the problem of anticompetitive uses of IP-derived power. Rather, it is raised in the context of the essential limits to antitrust. I ask: if there is any point at which the antitrust/IP balance might reasonably be expected to shift in favor of antitrust, where is that point? The answer is: erosion of the petitioning immunity.