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Profit Neutrality in Licensing: The Boundary Between Antitrust Law and Patent Law

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Author Info

  • Stephen M. Maurer

    (Maurer Graduate School of Public Policy, University of California, Berkeley)

  • Suzanne Scotchmer

    (Department of Economics & Graduate School of Public Policy, University of California, Berkeley & NBER)

Abstract

From the antitrust case law that governs restrictions on patent licenses, we derive three unifying principles: just reward, profit neutrality and minimalism. The just-reward principle holds that the patentholder's profits should be earned, if at all, from the social value created by his invention. Profit neutrality holds that patent rewards should not depend on the rightholder's ability to work the patent himself. Minimalism holds that licensing contracts should not use more restrictive terms than required for neutrality. We discuss how these principles determine which patent license restrictions should and should not be acceptable from an antitrust perspective. We also compare these principles and the per se rules that follow from them to the potential benefits and drawbacks likely to be encountered under a rule of reason approach.

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File URL: http://128.118.178.162/eps/le/papers/0407/0407001.pdf
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Bibliographic Info

Paper provided by EconWPA in its series Law and Economics with number 0407001.

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Length: 43 pages
Date of creation: 02 Jul 2004
Date of revision:
Handle: RePEc:wpa:wuwple:0407001

Note: 43 pages, Acrobat .pdf
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Web page: http://128.118.178.162

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  1. O'DONOGHUE, Ted & SCOTCHMER, Suzanne & THISSE, Jacques-François, . "Patent breadth, patent life, and the pace of technological progress," CORE Discussion Papers RP -1314, Université catholique de Louvain, Center for Operations Research and Econometrics (CORE).
  2. Paul Klemperer, 1990. "How Broad Should the Scope of Patent Protection Be?," RAND Journal of Economics, The RAND Corporation, vol. 21(1), pages 113-130, Spring.
  3. Carl Shapiro, 2003. "Antitrust Limits to Patent Settlements," Law and Economics 0303004, EconWPA.
  4. Suzanne Scotchmer, 1991. "Standing on the Shoulders of Giants: Cumulative Research and the Patent Law," Journal of Economic Perspectives, American Economic Association, vol. 5(1), pages 29-41, Winter.
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Cited by:
  1. Alberto BUCCI, 2004. "Economic growth in an enlarged Europe: the human capital and R&D dimensions," Departmental Working Papers 2004-22, Department of Economics, Management and Quantitative Methods at Università degli Studi di Milano.
  2. Gerlagh, Reyer & Kverndokk, Snorre & Rosendahl, Knut Einar, 2014. "The optimal time path of clean energy R&D policy when patents have finite lifetime," Journal of Environmental Economics and Management, Elsevier, vol. 67(1), pages 2-19.
  3. Schankerman, Mark & Scotchmer, Suzanne, 2005. "Still Looking for Lost Profits: The Case of Horizontal Competition," Department of Economics, Working Paper Series qt45r7776m, Department of Economics, Institute for Business and Economic Research, UC Berkeley.
  4. Llobet, Gerard & Suarez, Javier, 2005. "Financing and the Protection of Innovators," CEPR Discussion Papers 4944, C.E.P.R. Discussion Papers.
  5. Reyer Gerlagh & Snorre Kverndokk & Knut Einar Rosendah, 2008. "Linking Environmental and Innovation Policy," Working Papers 2008.53, Fondazione Eni Enrico Mattei.
  6. Matthew D. Henry & John L. Turner, 2010. "PATENT DAMAGES AND SPATIAL COMPETITION -super-* ," Journal of Industrial Economics, Wiley Blackwell, vol. 58(2), pages 279-305, 06.

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