Antitrust and Intellectual Property Rights: Toward a New Schumpeterian Approach
GAICIL Insights
Two trends are converging, the article argues: weaker protection of intellectual property and more populist antitrust enforcement. Both inhibit innovation, because both rest on an unsuitable conception of competition. IP reformers attack the property lever, while antitrust populists attack corporate scale.
The article conceptualizes innovation as the product of both scale and property rights, and proposes a “New Schumpeterian Approach” that restores the property norm governing innovation and removes mistaken antitrust concerns from patent negotiations. In AI, where models, data and know-how are the core assets, how the IP-antitrust interface is set will shape investment incentives.
Abstract
The protection of intellectual property rights is worsening, but populist antitrust enforcement is expanding. Both tendencies inhibit the process of innovation. An alternative approach to antitrust and intellectual property is both conceivable and essential. Rising resistance to intellectual property rights (IPRs) is gathering speed. Because intellectual property rights grant intellectual monopolies, officials must protect them with more force. Adopting a comprehensive, policy-optimizing innovation would bring social advantages and avert the ‘tragedy of the uncommons.’
This article opens by conceptualizing innovation as a result of both corporate scale and the remarkable lever that property rights constitute. Intellectual property reformers are concerned with the property lever, whereas antitrust populists are concerned with corporate scale. The article then illustrates that both approaches inhibit innovation by employing an unsuitable conception of competition. Not only is an alternate approach to the IP-antitrust interface required, but it is also feasible.
This essay articulates a policy adjustment that would foster innovation by integrating the IP-antitrust interface more effectively. We advocate that government agencies adopt a “New Schumpeterian Approach” that would reintroduce the property norm governing innovation and eliminate mistaken antitrust concerns in patent negotiations to maximize innovation incentives. The “New Schumpeterian Approach” would avert the tragedy of the commons at the IP-antitrust interface.1
Source of this abstract: Concurrences Awards nomination page (link), not the publisher.
Takeaway
“The “New Schumpeterian Approach” would avert the tragedy of the commons at the IP-antitrust interface.”
Quoted verbatim from the author’s abstract.
Notes
- Aurelien Portuese, Antitrust and Intellectual Property Rights: Toward a New Schumpeterian Approach, 103 J. Pat. & Trademark Off. Soc’y (2023), https://awards.concurrences.com/IMG/pdf/new_schumpeterian_approach.pdf?120018/7b0782e12c1db62c8db3ae4d5c811c0f3202ff16152655718cef07f57683607a. Abstract quoted verbatim from the Concurrences Awards nomination page (not the publisher), https://awards.concurrences.com/en/awards/2024/academic-articles/antitrust-and-intellectual-property-rights-toward-a-new-schumpeterian-approach. ↩
Cite as: Aurelien Portuese, Antitrust and Intellectual Property Rights: Toward a New Schumpeterian Approach, 103 J. Pat. & Trademark Off. Soc’y (2023), https://awards.concurrences.com/IMG/pdf/new_schumpeterian_approach.pdf?120018/7b0782e12c1db62c8db3ae4d5c811c0f3202ff16152655718cef07f57683607a
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