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Ruth L. Okediji, Balancing Acts: Antitrust for Economic Development, 48 Antitrust Bull. 923 (2003).

Abstract: The broad question of how antitrust principles are effected in a legal regime that deliberately grants exclusive market rights to innovators is one that is particularly complex in the information era. The intellectual property/antitrust interface requires a careful and flexible balance between the acceptable effects of proprietary rights on static efficiency, and the anticipated welfare gains of dynamic efficiency. The long-term gains of this trade-off justify and reinforce the competitive framework as the immediate context in which policy makers must scrutinize the exploitation of intellectual property. However, competition policies cannot enhance welfare simply by broad exemptions, harmonized minimum principles, or striking isolated provisions in licensing agreements. The welfare models of trade, intellectual property, and antitrust require considerable adjustment within specific, national contexts to assure the welfare benefits associated with each regulatory order are obtainable. This requires balancing acts - between trade and competition, competition and intellectual property, and between the different measurements of welfare associated with each discipline.