Patents, Innovations and Antitrust
Antitrust and Competition
In recent years, there has been heightened interest in the antitrust aspects of patent activities, in particular, the antitrust aspects of the activities of patent pools/trolls/trusts. Not much meaningful has occurred, because it is hard to assert a charge of post-grant monopolistic practices against a duly-issued, quasi-monopolistic, pseudo-law - a U.S. patent. Eventually, it will be realized that the antitrust concerns occur pre-grant. What follows are studies on patents and antitrust, followed by a list of complaints and court decisions dealing with patents and antitrust.
Invalid Patents, Innovation and Antitrust - New Theories
* * * Troll Antigens Under Development * * *
Patents and Antitrust - Key Caselaw
Ritz Camera & Image v. Sandisk Corp
US CAFC 2012-1183 (Nov. 2012)
- direct purchasers of patented products have standing to bring a Walker Process antitrust claim challenging a patent's validity without the threat of a patent infringement suit by the patent owner.
Unitherm Food Systems v. Swift-Eckrich
US CAFC 03-1472 (Jul. 2004)
- 'Walker Process' liability can involve an "inappropriate attempt to procure a patent" [@ 1717 - citing Noblepharma: 46 USPQ2d 1097], a wider range of actions than the earlier test for "fraudulent procurement". Decision and commentary in Finnegan Henderson article.
Walker Process Equipment v. Food Machinery Corp.
38 U.S. 172 (1965)
- the enforcement of a patent procured by fraud on the Patent Office may violate Section 2 of the Sherman Act, provided all other elements to establish a Section 2 monopolization charge are proved, in which event the triple damage provisions of Section 4 of the Clayton Act would be available to the injured party.
Legal Textbooks on Patents, Antitrust and Competition
Private Enforcement of Antitrust Law in the United States
Edward Elgar Publishing, ISBN 978 0 85793 959 3 (2012)
- edited by Albert Foer and Randy Stutz. "Written primarily from the viewpoint of the complainant, the Handbook goes well beyond a detailed cataloguing of the substantive and procedural considerations associated with individual and class action antitrust lawsuits by private individuals and businesses. It is a collection of thoughtful essays that delves deeply into practical and strategic considerations attending the decision-making of private practitioners."
International Handbook on Private Enforcement of Competition Law
Edward Elgar Publishing, ISBN 978 1 84844 877 3 (2010)
- edited by Albert Foer and Jonathan Cuneo. "With the international community on the brink of an explosion of private remedies for violation of national competition laws, this timely Handbook provides state-of-the-art analysis of the private enforcement of competition laws across the globe. Private enforcement of antitrust is becoming a significant component of competition policy laws worldwide; today, more than a hundred jurisdictions have adopted market regimes operating within a framework of competition law, providing a varied base for developing ways by which persons injured by anticompetitive conduct will (or will not) be able to obtain remedies."
Private Enforcement of Antitrust - Collective Claims in the EU and US
Edward Elgar Publishing, ISBN 978 1 84980 459 2 (2014 - coming)
- by Arianna Andreangeli. "Enhancing private litigation as a means of boosting the detection of anti-competitive behavior and of remedying the harmful consequences of these practices on consumers has been at the forefront of the EU Commission agenda for a long time. Starting from an examination of theories of collective action as a means of mobilising large groups of individuals, this book examines the current approaches governing class certification in competition damages' claims in the U.S. Federal courts. The book proposes a more holistic approach to collective redress, involving access to civil justice, a greater role for public enforcement authorities and the involvement of representative organisations."
Standards in EU Competition Law and US Antitrust Law
Edward Elgar Publishing, ISBN 978 1 78195 485 0 (2013 - coming)
- by Bjorn Lundqvist. "He analyzes the standardization process, looking, for example, at the agreements and the conduct of firms prior to the enactment of a technology standard by a Standard Setting Committee. Lundqvist asks whether these collaborations are more of an antitrust problem in themselves than the problems (such as 'patent thickets', 'anticommons', 'royalty-stacking' and patent/FRAND ambush) they are designed to resolve."
Patent Misuse: An Empirical Study of US Federal Caselaw
Edward Elgar Publishing, ISBN 978 0 85793 017 0 (2013 - coming)
- by Darly Lim. "This unique book presents a systematic, comprehensive account of the actual and perceived state of patent misuse case law and its relationship to antitrust law. Spanning the period from 1953 to 2010, the study considers every federal patent misuse case in modern US patent law, including the important Federal Circuit en banc decision in Princo, and shows the various ways federal judges employed the patent misuse doctrine over the years."
Intersection of IP and Competition Law in the Digital Environment
Edward Elgar Publishing, ISBN 978 1 78254 432 6 (2013 - coming)
- by Morris Hanson Averill. "The book provides a critical overview of the role of IP in the competition strategies adopted by firms, and offers a comparative analysis of the tests for monopolistic behavior that are applied in United States, Australia and Europe to refusals to license IP or interface information, refusals of access to data generated by web platforms, and to identify other forms of anti-competitive behavior."
Patents and Antitrust - Complaints and Decisions
Mylan Pharmaceutical v. Warner Chilcott, described in article
"Product Hopping antitrust lawsuit tkes on a heightened profile with proposed
FTC amicus brief
- 2012 complaint includes the charge that "Defendants have accomplished their anticompetitive goals through the use of various strategies that were intentionally designed to unlawfully interfere with the regulatory process, cause delays in the approval of generic versions of Doryx, and disrupt the market for generic Doryx."
Dennis Dilbeck v. Netflix,
Complaint filed January 2007
- Dilbeck files lawsuit, complaining Netflix violated antitrust law by fraudulently concealing prior art related to patents being asserted against Blockbuster.
Cascade Computer v. RPX, LG, Motorola Mobility, Samsung, Dell,
Complaint filed March 2012
- Cascades Computer sues patent aggregator RPX (an Intellectual Ventures spin-off) and some companies (HTC, MM, LG, Samsung, Dell) for price fixing and conspiring to restrain trade in violation of the Clayton and Sherman Acts as well as under California state antitrust law. The allegation is that RPX and its members decided as a group to boycott negotiations with Cascades except through their aggregator RPX. PatentlyO rates the complaint itself as a nice read.
In the Matter of Motorola Mobility and Google,
Decision and Order (Jan 2013)
- Google agrees to not seek injunctions against willing licensees on standard-essential patents that the company had obtained from Motorola.
Monsanto v. DuPont and Pioneer Hi-Bred,
Sep 2009 counterclaims
- earlier, Monsanto had sued DuPont and Pioneer for infringing Monsanto's patent on glyphosate herbicides, 5,633,435 ("Glyphosate-tolerant 5-enolpyruvylshikimate-3-phosphate synthases"), and its reissue patent RE39247. In response, Monsanto filed counterclaims asking the court to declare the patents invalid, and to find Monsanto guilty of antitrust violations. DuPont accuses (page 43) Monsanto of inequitable conduct before the PTO in the withholding of prior art that questions the validity of the patents.
Intel v. FTC
Dec 2009 complaint
- FTC charges with abusive practices to maintain Intel's monopoly in markets for central processing units (CPUs) and for graphic processing units (GPUs), in particular hurting AMD and Via Technologies.
FTC v. Cephalon
Feb 2008 complaint
- FTC asks the court to stop Cephalon from preventing generic competition to one of its drugs, Provigil, after its competitors had either worked around or challenged the validity of Cephalon's last remaining patent on Provigil, an amphetamine-like stimulant. Cephalon paid $200,000,000 collectively to four generic companies to abandon their patent challenge and delay marketing their generics products, saving billions of dollars in lost sales.
Dilbeck v. NetFlix,
Jan 2007 complaint
- an individual, Dennis Dilbeck, files a class-action antitrust lawsuit against NetFlix for its use of patents 6,584,450 ("Method and apparatus for renting items") and 7,024,381 ("Approach for renting items to customers").
Pullen Seeds v. Monsanto,
Sep 2006 complaint
- Pullen Seeds and Soils accuses Monsanto of anticompetitive behavior with regards to its patented Roundup Ready genentically modified seeds.
Legal, Academic Papers and News
World's tech companies look to Brussels to resolve antitrust complaints
James Kanter, New York Times, 10 Apr 2013
Are foreign governments getting into profitable US 'patent troll' business
Neil Hughes, Apple Insider, 20 March 2013
Supreme Court upholds class action lawsuits in the public interest
Editorial, New York Times, 3 Mar 2013
Innovation tax breaks being abused by large multinationals in Europe
Reuters/CNBC, 18 Feb 2013
An American perspective from the crossroads of antitrust and IP
Albert Foer, American Antitrust Institute, Feb 2013
Should Federal Circuit hear standard essential antitrust appeals?
Alison Frankel, Thomson Reuters Legal, 29 Jan 2013
How Steve Jobs used Apple's patents as a threat against Palm's hiring Apple
Jeff Blagdon, The Verge, 23 Jan 2013
#10: regulators worldwide are increasingly saying 'no' to patent wars and trolls
Marcia Garcia, Lexology - "Predictions for 2013", 21 Jan 2013
Google's FTC antitrust agreement could alter tech world's patent wars
Andrew Longstreth, Reuters, 7 Jan 2013
FTC case Google was always weak - antitrust only protects competition and consumers, not competitors
Wall Street Journal, Jan 2013
Gray areas in Part II of Google vs. FTC antitrust settlement: patents
Wall Street Journal, 3 Jan 2013
EU to charge Samsung with antitrust over patent abuse against Apple
Glenn Kunzler, MacTrast, 20 Dec 2012
How hidden IP assets hurt the entire patent community
Matt Rappaport, Law360, 28 Nov 2012
Federal Circuit expands ability to bring antitrust claims against patent holders
Jim Singer, Fox Rothschild, 26 Nov 2012 (see Ritz Camera above)
DoJ and FTC take an antitrust look at patent-holding firms' impact
Brent Kendall, Wall Street Journal, 18 Nov 2012
Why an antitrust lawyer cares about patent reform
David Balto, AntitrustConnect Blog, 16 Nov 2012
Antitrust agencies right to expand scrutiny of patent transfers
David Balto, Huffington Post, 23 Oct 2012
How Apple and Microsoft armed 4,000 patent warheads
Robert McMillan, WIRED, 21 May 2012
The giant [patent aggregrators] among us
Stanford Technology Law Review, Jan 2012
When patent, antitrust worlds collide
Thomas Catan, Wall Street Journal, 14 Nov 2011
MOSAID acquires 1200 Nokia Standards-Essential wireless patents
MOSAID Press Release, 1 Sep 2011
A competition policy perspective on patent law
Edit Ramirez, Federal Trade Commission, Aug 2011
Feds looking into antitrust issues with Nortel patent sale to Apple/Microsot/RIM coalition
Electronista, 10 Jul 2011
Intellectual Ventures' patent extortion fund is reaping hundreds of millions of dollars
TechCrunch, Sept 2008
Authorized generics: antitrust issues and the Hatch-Waxman Act
Fenwick West, June 2005
Laws and government policies
Antitrust Enforcement and IP Rights: promoting innovation and competition
U.S. DoJ and U.S. F.T.C., April 2007
Antitrust Guidelines for the Licensing of Intellectual Property
U.S. Department of Justice, 1995
Guidelines for Use of Intellectual Property under the Antimonopoly Act
Japan Fair Trade Commission, 2007
Guidelines on Standardization and Patent Pool Arrangements
Japan Fair Trade Commission