Christopher R. Leslie: Patent Tying, Price Discrimination, and Innovation

Do patent tying arrangements diminish incentives for innovation? In his recent article Patent Tying, Price Discrimination, and Innovation, 77 Antitrust Law Journal 811 (2011), Professor Christopher R. Leslie (University of California, Irvine School of Law) argues that, contrary to the views of commentators who justify patent tying as pro-innovation, metered tying can diminish incentives for innovation. He therefore recommends that antitrust law not recognize a price discrimination defense to patent tying.

Lemley & McKenna: Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP

Traditionally, antitrust law has viewed product markets as relatively static domains where products compete solely based on price and quality. But intellectual property rights complicate this simple picture. For example, while basic intuition would make one assume that Pepsi and Coke compete in the same market (the market for colas or sodas, for example), reality suggests otherwise. Though research indicates that consumers prefer Pepsi over Coke in blind taste tests (better quality), consumers still prefer Coke over Pepsi when the blinders are removed—the “Coke” trademark, on its own, differentiates the product such that Coke and Pepsi may, in reality, compete in separate markets. Using this observation as a springboard for their recently-released working paper, Professors Mark Lemley of Stanford Law School and Mark P. McKenna at Notre Dame Law School ask us to consider the impact of IP rights on market power generally; and, in so doing, they provide some useful insights about the use of market definition in IP cases.

Michael Burstein: Exchanging Information without Intellectual Property

Are intellectual property rights necessary for robust innovation? In his article, Exchanging Information Without Intellectual Property (forthcoming Texas Law Review), Professor Michael Burstein analyzes the role of intellectual property in information exchange. The article explores the range of potential strategies parties may use to enable commercially significant exchange and the ways in which those strategies interact within complex business, cultural, and legal environments.