In her Article, Ms. Kingsbury notes that American courts do not use antitrust law's market definition approach in intellectual property cases. She discusses five potential rationales for this dichotomy: (1) intellectual property cases involve new products without defined markets; (2) market definition limits judicial flexibility; (3) courts do not want to burden intellectual property litigants with the time and expense of economic evidence; (4) judges reason from precedent, and that precedent did not consider market definition; and (5) "market" conveys a different meaning in intellectual property law than it does in antitrust law. Kingsbury presents counterarguments to these rationales and argues that courts should use market definition in intellectual property law. While she grants that the importation of the market definition approach may change intellectual property law, particularly with regard to patent misuse, patent damages, and copyright fair use; she further argues that these changes will benefit consumers, the public domain, and future innovators. In essence, Kingsbury is concerned that intellectual property law is overprotective because it ignores the market definition approach of antitrust law.
Anna F. Kingsbury,
Market Definition in Intellectual Property Law: Should Intellectual Property Courts Use an Antitrust Approach to Market Definition?,
8 Marq. Intellectual Property L. Rev. 63
Available at: http://scholarship.law.marquette.edu/iplr/vol8/iss1/2