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University of Houston Law Center




I am not sure why small business concerns have not had more influence on IP law. Perhaps the sentiment prevailing in antitrust law spilled over into IP law. American antitrust law has reached a near consensus that small firms get no special treatment under a law designed to protect competition, not competitors. ° In contrast, European competition law regulators are more likely to protect small business, and European patent policymakers openly fret about how to reform their patent law to promote small business.2

Regardless, my concern in this Article is mostly with the normative question: Should IP law favor small firms or give them any special attention? I will limit my discussion mainly to features of the law that are especially important to research intensive firms. My analysis distinguishes invention in small firms from innovation by small firms. I argue that IP law should do little to aid small firms as inventors, but possibly some favoritism toward small firms as innovators is appropriate. I lack the necessary empirical evidence to make a solid case for any sort of favoritism, but there are some good arguments for using IP law, not antitrust law, to protect small, high-tech firms from opportunistic and anticompetitive IP lawsuits. In contrast, I find little reason to put a thumb on the scale in favor of small firms when considering patent reform.

I assess favoritism in terms of traditional notions of economic efficiency. Thus, I will not consider arguments about distribution, localism, or democracy that might support intervention on behalf of small firms. None of these arguments seem especially strong in this context.

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