The Department of Justice and the Federal Trade Commission have frequently raised innovation concerns as reasons to challenge mergers. This chapter surveys the economic theories of innovation incentives and considers how the theory may inform antitrust analysis for merger investigations and other conduct that involve innovation. Competition can promote innovation by reducing the value of failing to invest in research and development. However, with non-exclusive intellectual property rights, competition can reduce innovation incentives by lowering post-innovation profits. There is some empirical support for these economic theories. The chapter concludes that economics can inform antitrust analysis for mergers and other conduct that could affect innovation, although it is important that antitrust analysis carefully consider the key factors that drive innovation incentives.

Very large awards and settlements for patent infringement have increased dramatically since the 1980s. A large fraction of these awards have occurred in the computer hardware and software industries. Complex technologies such as computer hardware and software require rights to a very large number of patents. One explanation for the large awards for patent infringement is the bargaining power of a patentee that has a credible injunction threat for a product that requires rights to multiple patents. This can lead to infringement damage awards and settlements that overestimate the patent’s contribution to product value.

Hundreds of patents cover products in many high technology fields such as semiconductors, information technology, and biotechnology. Firms that make, sell, or use products in these fields often have to negotiate patent rights with many intellectual property owners. The time and effort required to assemble these rights can interfere with the adoption and diffusion of new technologies and the cumulative payments to rights holders for use of their intellectual property can weigh heavily on technology costs.