AbstractProperty is being hijacked. In property law itself, it is well-recognized that owners’ rights are accompanied by robust limits. No one familiar with property law could reasonably claim that property owners have absolute rights to exclude.
But when the concept of property is exported elsewhere, those limits are sometimes forgotten. Such a version of property is viewed as absolute, not restricted by any limits. In the copyright realm, for example, we have seen it with owners claiming that infringement is “theft” or “piracy.”
And now we are seeing it in the antitrust arena. Assistant Attorney General (AAG) Makan Delrahim has advocated an absolutist conception of property for patents, asserting that they provide an unqualified right to exclude followed by an injunction. That position is accompanied by the claim that antitrust has no role to play in addressing patent holdup, which occurs when a patent owner seeks an injunction or excessive royalties after an industry has adopted a patented technology that cannot be avoided.
This article (written for a symposium on IP and property) demonstrates how absolutist conceptions of limitless rights are not consistent with property law and do not justify abandoning antitrust scrutiny of patent holdup. If AAG Delrahim is going to launch an assault on antitrust's vital role in policing standard-setting abuses, he will need support from somewhere other than property law.
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