Originally uploaded at SSRN.


This brief essay arises from my participation in an April 2006 conference at Seattle University Law School, entitled At the Intersection of Antitrust and Intellectual Property Law: Looking Both Ways to Avoid a Collision. This intersection metaphor is a common one for describing antitrust law's relationship with intellectual property law, among both courts and commentators. This essay explores a different metaphor: patent ships sail an antitrust sea, protecting those aboard from competition's harshest dangers - but only for a time. The nautical metaphor evokes three ideas that the crossroads metaphor does not. First, vigorous competition is the pervasive, baseline reality; patent protection is the temporary, partial exception. Second, we grasp both patent and antitrust policy with a common science, economics. Third, although neither patent nor antitrust law doctrines are good tools for fixing fundamental problems in the other body of law, both these bodies of law help us better understand the shortcomings of the other.