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Academic Articles Awards > Intellectual Property

Apples and Oranges: Comparing Assertions of SEPs and Differentiating Patents from an Antitrust Perspective

Jay Jurata and Adya Baker, CPI Antitrust Chronicle, (2) March 2015

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Intellectual property and antitrust laws share a common goal of fostering innovation while protecting competition. In the United States, the Patent Act bestows on the patent holder the right to exclude others from making, using, selling, or importing the patented invention, as well as the right to exploit the patented invention through licensing it to others. The Sherman Antitrust Act, while targeted toward anticompetitive conduct, does not restrict the long recognized right to freely exercise one’s independent discretion to deal, or to announce in advance the circumstances under which he or she will refuse to deal. Indeed, the possession of monopoly power, and the concomitant charging of monopoly price, is not only lawful; it is an important element of the free-market system.

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