The Importance of Harm

Christina Bohannan and Herbert Hovenkamp

in Creation without Restraint

Published in print January 2012 | ISBN: 9780199738830
Published online May 2012 | e-ISBN: 9780199932702 | DOI:
The Importance of Harm

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This chapter analyzes the unjustified differences between proof of harm in competition and innovation policy. In antitrust law, harm is never presumed and must be proven without undue speculation, and legal remedies are often denied to those who were clearly harmed. By contrast, IP law often presumes harm, sometimes even going to the extreme of awarding damages to IP owners who were actually benefitted rather than harmed by a defendant's actions. The rhetoric of “property” that is used in IP discourse explains part, but hardly all, of this difference.

Keywords: proof of harm; competition policy; innovation policy; antitrust law; intellectual property law

Chapter.  13700 words. 

Subjects: Competition Law

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