Patents v. Antitrust : Preempting Conflict

The dissonance between patent law and antitrust law has persisted despite a century of attempts at harmonization. This Article suggests an elegant, novel solution: preemption doctrine. Recognizing the limits of and costs associated with antitrust law, the U.S. Supreme Court has already held that where an alternative regulatory authority exists—and overlapping application of antitrust regulation would lead to conflict—antitrust law may be implicitly preempted. But this doctrine remains almost entirely unexplored. This Article applies preemption doctrine precedent to the patent-antitrust context, analyzing where patent regulatory authority exists and where simultaneous antitrust regulation is likely to generate conflicting guidance and requirements. Under the Court's precedent, this combination of overlap and conflict should be enough to support preemption, at least within certain categories of patent cases. Moreover, this Article explores how the unique nature of patents and the interplay—and tension—that patent law alone has with antitrust law supports an even broader interpretation of existing preemption doctrine in this context