Antitrust law is antithetical to IP law.

This chapter aims to provide an overview of the intersection between intellectual property (IP) and antitrust law and to show the major relevance this intersection has for intellectual property scholars. Antitrust law and intellectual property law frequently overlap with each other, and a good scholar or practitioner of either subject must necessarily understand the other. Against this background, this chapter aims to address some of the most relevant issues that relate to this intersection and to the conceptualization of antitrust principles for intellectual property scholars and vice versa.

To this end, it is first necessary to elaborate—albeit in a nutshell—an oriented definition of the two branches of law and to clarify their intrinsic relationship.

In particular, intellectual property creates exclusive rights in a wide and diverse range of things (see the subject-matters of copyright, patents, and trademarks). Once someone becomes the owner of an intellectual property right (IPR), she can somehow exclude third parties.1 In this sense, we are talking about property. This right to exclude third parties is a consequence of the need to encourage innovation because it allows the creators of this innovation to reap most of its benefits.2 More generally, intellectual property encourages activities on the part of the community, since these activities increase the overall level of innovation.3

Antitrust law, instead, protects competition and the competitive process by preventing certain types of behaviour. It is a rather odd instrument within the toolset of economic regulation: it does not grant prerogatives nor does it impose positive obligations; it does not govern specific industries or sectors; it does not entrust agencies, authorities, let alone judges, with the power to adopt decisions with erga omnes effects. Antitrust law works at the margins: it focuses on two sets of behaviours—agreements and monopolistic practices—and forbids only those of them that, on a case-by-case basis, are likely to alter the functioning of the market. Therefore, antitrust enforcers—whether agencies, authorities, or judges—follow a case-by-case approach and exercise judicial (or almost-judicial) powers to intervene against the sole firms that, in any sector or industry of the economy, pose a threat to competition.

Economics teaches that only firms with a certain amount of market power can harm competition, and that such harm—named antitrust injury—can only manifest itself in certain forms, namely: a decrease in output; an increase in market price; a reduction in the quality and variety of the offer; or a lessening in the pace of innovation.

In mere economic terms, therefore, a specific work, creation, or invention covered by intellectual property law cannot be freely sold or distributed. By conferring control—or monopoly—over a particular asset, intellectual property law evades regular competition dynamics.4 If we wanted to drastically simplify the reasoning behind the relationship between intellectual property and antitrust law, we could go so far as to say that intellectual property creates monopolies, whereas antitrust law fights against or outright prevents them.