The Importance of Harm
Document Type
Book Chapter
Publication Date
1-1-2012
Abstract
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
Publication Title
Creation without Restraint: Promoting Liberty and Rivalry in Innovation
Repository Citation
Hovenkamp, Herbert and Bohannan, Christina, "The Importance of Harm" (2012). Book Chapters. 64.
https://scholarship.law.upenn.edu/faculty_chapters/64
https://doi.org/10.1093/acprof:oso/9780199738830.003.0004
DOI
https://doi.org/10.1093/acprof:oso/9780199738830.003.0004