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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: 25 July 2021

Post-Sale Restraints

Post-Sale Restraints

(p.365) 13 Post-Sale Restraints
Creation without Restraint

Christina Bohannan

Herbert Hovenkamp

Oxford University Press

This chapter examines the much misunderstood topic of post-sale and related vertical restrictions on the licensing of IP rights and the sale of IP-protected goods. In IP rights, more than in any other area, the classical conception of contract as a series of single-shot transactions has disappeared. For a rights holder, downstream control has many values, and most instances are socially beneficial. The large number of legal doctrines dealing with downstream restraints includes tying and resale price maintenance in antitrust doctrine, and “exhaustion” and licensing restrictions in IP law. The economic rationales include price discrimination, transaction cost savings, elimination of double monopoly markups, strategic exclusion of rivals, limiting reverse engineering, and even controlling the development of secondhand markets.

Keywords:   intellectual property rights, licensing, contract, vertical restraints

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