University of Michigan Law School Scholarship Repository
Abstract
Although the antitrust laws apply to all industries, the application must be tempered in each case by the myriad ways in which competition can be modified by structural, behavioral, technological, regulatory, and other characteristics. The Commission applies the antitrust laws with sensitivity to the special characteristics of high-tech industries and of intellectual property, but also with the recognition that--as in other industries--competition plays an important role in spurring innovation and in spreading the benefits of that innovation to consumers. This focus is not new. This balanced approach has roots that go back at least to the 1977 Antitrust Guide to International Operations in the Ford Administration and the 1988 Antitrust Guidelines for International Operations in the last year of the Reagan Administration, and is set forth in the 1995 Antitrust Guidelines for the Licensing of Intellectual Property four years ago. It is also informed by the extensive hearings and detailed reporting by the Commission three years ago on antitrust in the 21st century. Of course, enforcement in this area is not entirely free from controversy. A few critics question whether the antitrust laws that were originally designed to apply to traditional manufacturing and distribution industries should be applied at all to competition in fast-moving industries where products often are quickly outmoded and market share may be ephemeral. Others express concern about the potential conflict between the antitrust laws and the laws that protect intellectual property. Are monopolies granted under U. S. patent laws fundamentally in conflict with the antimonopoly focus of the Sherman Act and later antitrust statutes? Can intellectual property rights coexist with effective antitrust enforcement
