Volume 64, Issue 6, 1727-1758
This Note analyzes the current antitrust regulatory framework for high tech, iteratively evolving computer and software systems. This issue has significant implications for the current economy as many modern technology companies base their entire business model on such systems. This Note examines the problems concerning software patents through an analysis of two well-known mobile phone operating systems: Apple’s iOS and Google’s Android.This Note also examines the current regulatory framework that prevents large companies from taking anticompetitive actions to expand their power in fast-moving high tech markets at the expense of smaller competitors—specifically tying, predatory innovation, refusal to deal or license, sham litigation, and overbroad software patents. This Note also proposes several changes to both antitrust and patent laws that will make it more difficult for established market players to prevent new competitors from entering high tech markets, thereby promoting greater openness and innovation. These changes include modernizing sham litigation, reducing the number of patent infringement actions by allowing reverse engineering of software patent and an independent invention defense, and increased scrutiny of the business improvements antitrust defense.
Each of these proposed changes targets the promotion of innovation by enabling the entry of new players into established markets without the threat of expensive litigation constantly undermining the compatibility and efficiency of the products that they attempt to bring to market.