Free Contracting, Fair Competition, and Article 2B: Some Reflections on Federal Competition Policy, Information Transactions, and Aggressive Neutrality

The proposed draft of Article 2B attempts to remain neutral regarding conflicts between the potentially competing goals of state contract law and federal intellectual property and antitrust law. A neutral stance seems sensible because federal law would prevail in any conflict with state contract law. However, this Article argues that such neutrality cannot be completely achieved where antitrust and intellectual property doctrines intersect. This Article concludes that courts deciding antitrust-related disputes based on matters within the scope of Article 2B should distinguish between claims based on the market position of the intellectual property rights and claims grounded in misconduct during contract negotiations or performance. In the former cases, intellectual property law should govern issues relating to the economic strength of the intellectual property right. In the latter, the courts should look first to contract principles and, if a violation of contract law is found, should determine whether normal contract remedies could provide appropriate relief. If no contract violation is found, courts should scrutinize antitrust claims closely to determine whether any harm to allocative efficiency is shown; courts should not allow antitrust allegations to be used simply to obtain leverage in a contractual dispute.