Introduction

The interplay between patent and antitrust laws creates an interesting, if not confusing, area of the law. Patent law, on the one hand, grants rights that are frequently (albeit loosely) referred to as a “monopoly.” On the other hand, antitrust laws are intended to protect competition by preventing unlawful monopolies and other activities that create an unfair playing field between competitors. The potentially conflicting policies underlying these two bodies of law have created tension between them. But the existence of both areas of law means that a patent owner needs to understand both in order to steer clear of patent enforcement activities that can run afoul of the antitrust laws, as antitrust violations can result in patent unenforceability, civil damages, and criminal penalties.

Background of Patent and Antitrust Laws

Patents and the Right to Exclude

The United States Constitution gives Congress the power to promote the progress of science and the useful arts by securing for a limited time to inventors the exclusive right to their discoveries. Congress has exercised its Constitutional power by allowing inventors to obtain patents on their inventions. In particular, patents provide the “right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process.” This right to exclude, however, does not provide inventors with “any exemption from the provisions of the Sherman [Antitrust] Act beyond the limits of the patent monopoly.”