Page:Intel, Apple, Google, Microsoft, and Facebook - Observations on Antitrust and the High-Tech Sector.pdf/8

 answer is not to deny the FTC Section 5 authority, though it may be to augment DOJ’s powers with Section 5 authority. I have yet to make up my mind on that one, which, in any event, is a debate for another day.

A fourth challenge I have heard is that we should stay out of high-tech markets because, as a matter of policy, we should not be in the business of challenging an inventor’s conduct. Or, to put it differently, we don’t want to deter inventors from innovating, so their conduct should be per se legal. In the alternative, conduct by innovators in the high-tech sphere – regardless of its horizontal nature – should be subject to the rule of reason. I completely disagree with these arguments.

As a threshold matter, it would be irresponsible of us to treat any transaction or conduct by an inventor as per se legal. That would be like creating a super-immunity for patent holders. To be sure, patent law grants a period of exclusivity to an inventor who lawfully obtains a patent from the PTO. But even determining the bounds of that exclusivity is not easy. On the one hand, we must be sensitive—as Justice Scalia noted in Trinko—to the fact that monopoly profits are often what incentivize a firm to innovate in the first place. On the other hand, however, as the FTC acknowledged in its amicus brief to the Federal Circuit in the TiVo v. Echostar litigation (which dealt with incentives