The Standards Edge: Patents, Competition and Interoperability

By: Jonathan Rubin

For more than a century, US patent and antitrust laws have coexisted in a delicate balance. Each seeks to promote innovation and social welfare while following divergent approaches to doing so. In the modern, highly technological environment, however, the patent-antitrust accommodation has encountered some difficulties. These include how the
legal regime should deal with tie-in sales, industry standards that claim to be encumbered by patents, and overly broad anticompetitive or exclusionary effects arising out of the enforcement of patent rights. This article investigates an approach to patent-antitrust accommodation based on a proposed interoperability policy. In this policy, acts of unauthorized copying, imitation, reverse engineering, or decompilation would not be infringing when undertaken for the sole purpose of achieving interoperability between complementary devices, designs, or programs. The focus is on the mechanics of operationalizing such an interoperability policy in the context of current US patent law and establishing a paradigm that bridges the technical  concerns of patent law and the market analysis of antitrust.

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