INTELLECTUAL PROPERTY & COMPETITION POLICY, SPECIAL TOPICS IN IP (2) (CIP 400)

Professor Rudy Peritz

Takes up issues of intellectual property rights that involve competition policy. Outside the domain of intellectual property law, competition policy informs antitrust, constitutional law, international trade and development, as well as other areas of law. Important policy questions arise at the boundaries between intellectual property rights and these areas, questions such as the tension between patent rights to exclude and antitrust’s essential facility doctrine, which sometimes requires a dominant firm to grant access to its rivals. Another example is the tension between the accuracy and fairness of treating “Champagne” and “Parmigianino” as trademarks of geographic origin, and the resulting restraint of competition from close substitutes produced in California, Spain, or China.
Competition policy is also a core principle inside the domain of intellectual property, whether patent, copyright, trade secret, or trademark. For instance, patents are granted at the conclusion of a process that amounts to a competition in ideas between the applicant’s invention and prior art. As well, trade secret misappropriation is seen as unfair competition even though imitation and copying are generally seen as methods of fair competition. Copyright and trademark embody their own competition policies as well. What is the relationship between the intellectual property right in each instance and the internal competition policy that complements it? This question provides a useful guide for clarifying the relationships between private rights and public interests reflected throughout the domain of intellectual property. Attorneys, judges, legislators, and other policy makers face the challenges of reconciling private rights and public interests every day, even though they often do not recognize the issues as involving competition policy.
Seminarians work on practical problems and policy issues of current importance in patent, trademark, copyright, and trade secret protection that involve internal or external competition policies. The course culminates in the writing and presentation of a seminar paper.

Prerequisite: Intellectual Property or Antitrust or permission of the instructor