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A Reemergence of Regulation at the Interface Between Patents and Antitrust

Engage Volume 4, Issue 1, May 2003 At the end of 2001, the Federal Trade Commission and the Antitrust Division of the Justice Department announced plans for joint hearings “to develop a better understanding of how to manage the issues that arise at the intersection of antitrust and intellectual property law and policy.”1 The resulting hearings spanned almost the entire year of 2002, covered a wide range of topics, but placed particular emphasis on perceived problems in the patent system.2 Although the impact of these hearings in 2003 and beyond may not be determined for some time, it has potential to be quite substantial. In the least, the record of these hearings will be an important resource for policy makers and commentators, among others. Yet a look back over the hearings reveals some flaws in their basic premises about patent law and practice that could seriously undermine the hearings’ central goal of improved  understanding. Many of these flaws are reminiscent of earlier efforts to regulate patents at the beginning of the past century. Those earlier efforts lead to the Congressional actions to codify our present patent system in the 1952 Patent Act and statutorily reverse the entire bodies of case law the earlier efforts had generated.