This Article criticizes the institutional setup in which the antitrust policies regarding IP exploitation are designed and enforced. The author compares how IP licensing is scrutinized by antitrust regimes in the European Union and the United States. The result of that comparison leads to the conclusion that any attempted resolution of the IP-Antitrust dilemma will remain inadequate as long as it is antitrust-based, that is, regulated by antitrust laws or guidelines designed by antitrust-agencies. The author argues that antitrust concerns can and should be accounted for through proper construction and application of the IP laws themselves. The article suggests a new, IP-driven approach to the analysis of IP licenses. This approach attempts to step away from the isolated application of the antitrust system and create an integrated regulatory system based on the specialized IP agencies and courts.
Wagging The Dog? Reconsidering Antitrust-Based Regulation of IP-Licensing,
12 Marq. Intellectual Property L. Rev. 49
Available at: http://scholarship.law.marquette.edu/iplr/vol12/iss1/2