Patents v. Antitrust: Preempting Conflict

Abstract

The dissonance between patent law and antitrust law has persisted despite a century of varied attempts at harmonization. This Article suggests an elegant, novel solution: preemption doctrine. Recognizing the limits of and costs associated with antitrust law, the Supreme Court has already held that where an alternative regulatory authority exists — and overlapping application of antitrust regulation would lead to conflict — antitrust law may be implicitly preempted. But that doctrine remains almost entirely unexplored. This Article applies that precedent to the patent-antitrust context, analyzing where patent regulatory authority exists, and where simultaneous antitrust regulation is likely to generate conflicting guidance and requirements. Under the Court’s precedent, this combination of overlap and conflict should be enough to support preemption, at least in certain kinds of patent cases. Moreover, this Article explores how the unique nature of patents and the interplay — and tension — that patent law alone has with antitrust law supports an even broader interpretation of existing preemption doctrine.