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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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(p.258) 10 Misuse
Creation without Restraint

Christina Bohannan

Herbert Hovenkamp

Oxford University Press

The ability of antitrust law to deal with innovation restraints is limited because the path of innovation is frequently unpredictable, at least when the innovation's promise lies in the future. The doctrine of IP misuse provides an alternative tool to combat innovation restraints. In addition, misuse can provide a remedy against some anticompetitive practices, provided that the practices involve a patented or copyrighted good. This chapter argues that although antitrust violations are an important subset of misuse cases, antitrust law should not define the scope of the misuse doctrine. Misuse doctrine emanates from IP policy, not from antitrust policy, and has its own values to protect. Among these are restraints on competition, restraints on innovation, and unreasonable foreclosure of information or technology that rightfully belongs in the public domain.

Keywords:   antitrust law, innovation, intellectual property law, misuse doctrine, antitrust

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