The New Madison Approach has recently been introduced by the Department of Justice Antitrust Division in an effort to address a weakening of patent rights in recent years. The approach has four premises: patent hold-up is not an antitrust problem, standard setting organizations should better protect against patent hold-out to ensure maximum incentives to innovate, patent holder injunction rights should be protected and not limited, and a unilateral and unconditional refusal to license a valid patent should be per se legal. After providing an introduction to the relevant law and terms of art, support and criticism of the New Madison Approach are reviewed. Clear policy and direction will help stakeholders know that their efforts to innovate and implement inventions will not be unduly thwarted by antitrust law.
The New Madison Approach to Antitrust Law and Intellectual Property Law,
Cath. U. J. L. & Tech
Available at: https://scholarship.law.edu/jlt/vol28/iss2/9