The Role of Design Choice in Intellectual Property and Antitrust Law

Abstract:      When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to optimize enforcement of intellectual property rights, and monopolists need not consider the effects on competitors when they devise and sell new products.

Yet in both contexts, on rare occasions, courts deem the non-interference principle inapplicable and find liability, at least in part, based on a party’s choice of product design. Although intellectual property and antitrust scholars have each addressed judicial treatment of product design within their discipline, commentators have given little attention to similarities and differences between how the non-interference principle plays out in each context. Such an investigation yields interesting insights about the values underlying non-interference, and has implications for judges applying the principle in both intellectual property and antitrust law. This essay explores the non-interference principle in intellectual property and antitrust law, with an eye toward the factors that determine its applicability across the two doctrinal contexts.

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