United States antitrust law seeks to encourage free and open competition by preventing exclusionary conduct that threatens the competitive process. Intellectual property rights (IPR) laws, by contrast, are designed to encourage innovation by granting IPR holders a limited statutory right to exclude competition. Compared to many jurisdictions, United States law balances this tension more frequently in favour of the IPR holder. In the United States, IPR holders are generally allowed to enforce their statutory right to exclude and to unilaterally decide to whom (if anyone) they will license their IPR and on what terms. Still, holding IPR does not confer a privilege or immunity to violate the antitrust laws. IPR holders risk violating those laws when they unlawfully acquire IPR (eg, through fraud on the rights-granting agency, typically the United States Patent and Trademark Office), or with respect to lawfully acquired IPR by:

• enforcing those rights in bad faith (eg, against parties to whom there is no colourable infringement claim);

• leveraging IPR beyond the scope of the rights granted to obtain competitive benefits not attributable to those rights; or

• acting collectively, rather than unilaterally, when enforcing those rights.

Originally Published in the Global Competition Review - The Antitrust Review of the Americas 2015.