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Creation without RestraintPromoting Liberty and Rivalry in Innovation$
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Christina Bohannan and Herbert Hovenkamp

Print publication date: 2012

Print ISBN-13: 9780199738830

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199738830.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 28 July 2021

The Importance of Harm

The Importance of Harm

Chapter:
(p.33) 3 The Importance of Harm
Source:
Creation without Restraint
Author(s):

Christina Bohannan

Herbert Hovenkamp

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199738830.003.0004

This chapter analyzes the unjustified differences between proof of harm in competition and innovation policy. In antitrust law, harm is never presumed and must be proven without undue speculation, and legal remedies are often denied to those who were clearly harmed. By contrast, IP law often presumes harm, sometimes even going to the extreme of awarding damages to IP owners who were actually benefitted rather than harmed by a defendant's actions. The rhetoric of “property” that is used in IP discourse explains part, but hardly all, of this difference.

Keywords:   proof of harm, competition policy, innovation policy, antitrust law, intellectual property law

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