Patent=Monopoly: A Legal Fiction

Abstract

A patent right is an exclusionary right. With it, the patent holder can exclude third parties from making, using, selling, etc. products or processes protected by his patent. In the past, this right has also been referred to as a 'monopoly right' and this has lead to considerable confusion about the scope of patent rights and the role of the patent system in a modern economy. This paper seeks to provide some clarity on this issue and highlight the distinction between the exclusionary right granted by patent law and the notion of monopoly in economic regulation.

Keywords: Patent, monopoly, IP, antitrust, exclusionary right, innovation, power over price

JEL Classification: K21; L4; O31; O34; 038