Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ


In modern antitrust law, intellectual and other forms of property have been treated symmetrically as a matter of principle. Recent actions by the Federal Trade Commission and Antitrust Division of the Department of Justice, however, sound a departure from this salutary principle of symmetry. In this paper, we describe and defend the principle against the recent barrage of agency testimony and enforcement actions discouraging holders of standard essential patents from pursuing preliminary injunctions or exclusion orders; arguing that breach of a FRAND commitment constitutes an antitrust violation; and tightening merger review involving standard essential patents.