©2012. Published in Landslide, Vol. 5, No. 1, September/October 2012, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
There is a tension between patent law and antitrust or competition law that has played out in various forms since the enactment of the Sherman and Clayton Antitrust Acts at the end of the 19th century. This tension is not surprising, given the role that each body of law plays in our legal and jurisprudential structures.
Patents carry with them a right to exclude all others from making, using, selling or offering to sell, or importing the patented invention. Patent lawyers frequently and correctly remind us that this right to exclude is not an affirmative right to do anything, and it certainly does not create a monopoly. True; but it is also true that the results of the exercise of patent rights sure looks like a monopoly some of the time. Perhaps it is this realization that prompted Thomas Jefferson, that man for all seasons whose many contributions included serving simultaneously as our nation’s first commissioner of patents and first and only patent examiner (no second pair of eyes needed) to offer the sage observation that in establishing a patent system it is important to draw a line “between the things which are worth to the public the embarrassment of a monopoly, and those which are not.”
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