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Patent Licensing in Connection with a Standard: Avoiding Antitrust Violations

By William K. Wells and Benjamin Hershkowitz
January 03, 2005

Patent and Antitrust: Appreciating Their Similarities and Differences

Antitrust laws are designed to protect consumers' rights. The Department of Justice (“DOJ”), the Federal Trade Commission (“FTC”) and private parties may take legal action against businesses that gain an unfair business advantage through the use of a monopolistic market power or other agreements that unfairly restrain trade. In other words, antitrust laws deter unfair advantages gained by businesses due to monopolistic market power.

Patent laws, on the other hand, protect the owner of the patent rights. A patent owner has a cause of action against businesses that make, use, sell, offer to sell or import products or services covered by the patent. The purpose behind such protection, as set forth in the Constitution, is “to promote the Progress of Science and useful Arts.”

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