Anticompetitive Innovation and the Quality of Invention

摘要

When, if ever, should antitrust condemn an act of invention? This Article addresses the challenging question of how best to judge predatory-invention claims, and under what standard courts should go about the formidable task of weighing the quality of a challenged improvement. It rejects as variously unworkable, incongruous, or incomplete the conflicting legal standards espoused by the D.C., Second, Ninth, and Federal Circuits. After considering several pertinent issues, the Article advocates the following test: if an impugned act of invention does not foreclose, but merely disadvantages, rival products, it should be per se lawful. If the challenged innovation effectively excludes entry into the relevant market, an antitrust violation should follow if the plaintiff demonstrates, and the defendant fails to rebut, the absence of a genuine technological improvement. The Article defines "genuine" as reflecting a calculable premium that consumers would pay for the improved-upon alternative(s), even if the extent of that price differential faDs short of the level required to place the new product in a distinct antitrust market. In determining the quality of an invention, courts should not draw an inference of technological merit from the fact that the U.S. Patent & Trademark Office has issued a patent, nor should evidence of predatory intent play a role in the analysis. The Article also recommends jettisoning from antitrust analysis the concept of "coercion." The Article concludes by applying its test to the quintessential example of predatory innovation: product hopping in the pharmaceutical industry.