The Importance of Harm

Document Type

Book Chapter

Publication Date



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.


proof of harm, competition policy, innovation policy, antitrust law, intellectual property law

Publication Title

Creation without Restraint: Promoting Liberty and Rivalry in Innovation