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A Patent and Its Continuation as an Antitrust Tying Arrangement
Journal of Technology Law & Policy (2013)
  • Mark R. Carter, , J.D., Ph.D., Georgetown University
Patent law and antitrust law implement different aspects of competition policy. Antitrust analysis of patent law has fixated on notice problems and patent continuations when applying the standard patent property model. That standard view analogizes claims with boundaries to land and infringement as trespass on the land. But, the standard view fails in practice especially when describing a patent and its continuation. This paper proposes a whole new patent-property and patent-claim view. Rather than boundaries to property, claims are better viewed as gates to the patent property defined in the original patent’s specification. Different claims are merely different gates allowing a possible trespass to the patent property. Combining this new claims-as-gates view with modern tying caselaw and precepts implies a patent and its continuation are not an illegal antitrust tying arrangement. In this light, the Rambus situation where a standards body licensed a patent but not the continuations would merely be a poor licensing deal by an unsophisticated licensee rather than illegal antitrust tying.
  • antitrust,
  • patent,
  • intellectual property,
  • patent notice,
  • patent–land analogy
Publication Date
June, 2013
Citation Information
Mark R. Carter, J.D., Ph.D., A Patent and Its Continuation as an Antitrust Tying Arrangement, 18 J. Tech. L. & Pol'y 37 (June 2013), available at