Patent, Antitrust, the New York Times, and the Supreme Court

Recently (June 17th), the New York Times said this in an article on a recent Supreme Court case: “The case pitted a company’s constitutional right to protect its intellectual property — through reliance on a patent that excludes competitors — against antitrust law, which holds that a company cannot unfairly exclude others from legitimately entering a business with a rival product.” This has been bothering me because the basis for U.S. patent and copyright law in the U.S. Constitution says this: “[Congress has the power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” The latter is a far cry from being a “constitutional right to protect its intellectual property.” In fact, the U.S. copyright laws specifically reject the concept of any natural right or moral right in a work (whereas France for example does have such a doctrine). Instead, as the Constitution says, we allow the protection of copyrights and patents only to promote progress and, even then, only for a limited time. This is because any such exclusive right is viewed as being against the greater good of the society as represented by the First Amendment, free trade, a competitive marketplace, etc. It is quite simply NOT A RIGHT. It is a privilege extended by the government in order to entice people to invent. By contrast, antitrust law is (theoretically) all about enabling competition, free trade, etc. It is forever, not a limited time and is always viewed as being in the public good. This is not a new tension in the law – antitrust and patent have always been at odds. Aside from the “limited time” of the exclusivity, antitrust should win.