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Articles 1 - 30 of 91
Full-Text Articles in Law
Antitrust Interoperability Remedies, Herbert J. Hovenkamp
Antitrust Interoperability Remedies, Herbert J. Hovenkamp
All Faculty Scholarship
Compelled interoperability can be a useful remedy for dominant firms, including large digital platforms, who violate the antitrust laws. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.
Given the wide variety of structures and business models for big tech, “interoperability” must be defined broadly. It can realistically include everything from “dynamic” interoperability that requires real time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real time interactions. Also included are the compelled sharing of intellectual property or …
Navigating The Transition To A More Innovation-Centric Antitrust (Review Of Richard J. Gilbert, Innovation Matters), Jonathan Baker
Navigating The Transition To A More Innovation-Centric Antitrust (Review Of Richard J. Gilbert, Innovation Matters), Jonathan Baker
Book Reviews
Review of Richard J. Gilbert Innovation Matters: Competition Policy for the High-Technology Economy MIT Press 2020
“Sacrifice And Recoupment” In The Antitrust Analysis Of Patent Settlements: Actavis Through The Lens Of Brooke Group, Aspen Skiing, And Trinko, Bryan Gant
American University Business Law Review
Patent settlements are typically procompetitive, benefiting not only the settling parties but also the courts and the general public. But in rare cases patent settlements might instead harm competition, and thus raise antitrust concerns. How are courts to determine when antitrust scrutiny should — and, more importantly, should not — be applied to patent settlements? The answer ostensibly came in the Supreme Court’s 2013 decision in FTC v. Actavis, Inc. Under Actavis, antitrust scrutiny of patent settlements may “sometimes” be appropriate where there is a “large,” “unexplained” “reverse payment” from the patentee to the patent challenger. Unless, that is, the …
House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp
House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp
All Faculty Scholarship
This is a response to a query from the Judiciary Committee of the U.S. House of Representatives, requesting my views about the adequacy of existing antitrust policy in digital markets.
The statutory text of the United States antitrust laws is very broad, condemning all anticompetitive restraints on trade, monopolization, and mergers and interbrand contractual exclusion whose effect “may be substantially to lessen competition or tend to create a monopoly.” Federal judicial interpretation is much narrower, however, for several reasons. One is the residue of a reaction against excessive antitrust enforcement in the 1970s and earlier. However, since that time antitrust …
Artificial Stupidity, Clark D. Asay
Artificial Stupidity, Clark D. Asay
William & Mary Law Review
Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme.
What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little …
Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp
Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp
All Faculty Scholarship
A deep split in American innovation policy has arisen between new economy and old economy innovation. In a recent policy statement, the Antitrust Division of the Justice Department takes a position that tilts more toward the old economy. Its December, 2019, policy statement on remedies for Standard Essential Patents issued jointly with the U.S. Patent and Trademark Office and the National Institute of Standards and Technology reflects this movement.
The policy statement as a whole contains two noteworthy problems: one is a glaring omission, and the other is a mischaracterization of the scope of antitrust liability. Both positions are strongly …
Frand And Antitrust, Herbert J. Hovenkamp
Frand And Antitrust, Herbert J. Hovenkamp
All Faculty Scholarship
This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First, is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation.
Every antitrust case must consider the market environment in which conduct is to be evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role is to …
Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe
Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe
UF Law Faculty Publications
This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …
Regulation And The Marginalist Revolution, Herbert J. Hovenkamp
Regulation And The Marginalist Revolution, Herbert J. Hovenkamp
All Faculty Scholarship
The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. Marginalism, whose development defines the boundary between classical political economy and neoclassical economics, completely overturned economists’ theory of value. It developed in the late nineteenth century in England, the Continent and the United States. For the classical political economists, value was a function of past averages. One good example is the wage-fund theory, which saw the optimal rate of wages as a function of the firm’s ability to save from previous profits. Another is the theory of corporate finance, which assessed a corporation’s …
Tribal Sovereign Immunity As A Defense At The Patent Trial And Appeal Board? Or A Violation Of U.S. Antitrust Laws?, Samantha Roth
Tribal Sovereign Immunity As A Defense At The Patent Trial And Appeal Board? Or A Violation Of U.S. Antitrust Laws?, Samantha Roth
Marquette Intellectual Property Law Review
This Comment will address two primary issues. First, it will analyze the basis of sovereign immunity rights of tribes, with a focus on the relationship between intellectual property rights and sovereignty. Second, it will discuss whether this arrangement violates the antitrust laws of the United States. This Comment concludes that even if a claim of tribal sovereign immunity is legitimate, it is likely that such an arrangement still violates the relevant antitrust claims.
Finding A Forest Through The Trees: Georgia-Pacific As Guidance For Arbitration Of International Compulsory Licensing Disputes, Karen Mckenzie
Finding A Forest Through The Trees: Georgia-Pacific As Guidance For Arbitration Of International Compulsory Licensing Disputes, Karen Mckenzie
Marquette Intellectual Property Law Review
This paper will examine the challenges of international compulsory licensing by examining the issue historically and legally as well as offer possible solutions. Thus, this paper will explore the challenge of balancing corporate interests against the affordability and availability of pharmaceuticals by focusing on discrete situations in developing countries, the history of compulsory licensing, and how the World Health Organization (the “WHO”) and the WTO have attempted to tackle these challenges through compulsory licensing, and it will suggest a possible framework for use in arbitration, which balances equities through a Georgia-Pacific analysis.
Protecting Wisconsinites From Trolls: The Federal Circuit's "Bad Faith" Preemption And Its Restrictive Effect, Andrew Salomone
Protecting Wisconsinites From Trolls: The Federal Circuit's "Bad Faith" Preemption And Its Restrictive Effect, Andrew Salomone
Marquette Intellectual Property Law Review
In this comment, I use Wis. Stat. Ann. § 100.197 (“Wisconsin’s anti-PAE statute”) to demonstrate the significant degree to which the Federal Circuit’s current preemption regime restricts states’ abilities to regulate the behavior of PAEs. In Part II, I summarize Wisconsin’s legislative response to PAEs. In Part III, I contrast the Federal Circuit’s preemption doctrine and the Supreme Court’s doctrine as it relates to state laws similar to anti-PAE statutes. Paying particular attention to Wisconsin’s patent notification statute, I provide a brief preemption analysis in Part IV. Finally, in Part V, I conclude by arguing that the severe consequences of …
Intellectual Property And Competition, Herbert J. Hovenkamp
Intellectual Property And Competition, Herbert J. Hovenkamp
All Faculty Scholarship
A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.
IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to …
Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing
Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing
San Diego Law Review
Like any other type of litigation, venue is often an important strategic decision for patent infringement litigants. Under the traditional nation-wide venue rule, a patent owner was able to sue a corporate defendant almost in every district in the country, giving rise to abusive forum shopping and the popularity of the Eastern District of Texas. Last year, the Supreme Court in TC Heartland dramatically changed the legal framework of venue in patent litigation, while leaving some issues unaddressed. After a discussion of the evolvement of venue laws and the significance of TC Heartland, this Comment focuses on the Venue Equity …
A Solution In Search Of A Problem At The Biologics Frontier, Erika Lietzan
A Solution In Search Of A Problem At The Biologics Frontier, Erika Lietzan
Faculty Publications
This short paper comments on Professor Carrier's new article, Biologics: The New Antitrust Frontier. His article makes a profound initial contribution to a new area of scholarship, based on a large body of prior work considering antitrust issues relating to small molecule drugs. But Professor Carrier’s article, like my own forthcoming piece on innovation and competition in the biologics marketplace, is inherently speculative. We are making our best judgments about the nature of a still emerging marketplace and likely conduct in that marketplace, based on our understandings of a new regulatory framework that is itself still emerging, the broader legal …
The Rule Of Reason, Herbert J. Hovenkamp
The Rule Of Reason, Herbert J. Hovenkamp
All Faculty Scholarship
Antitrust’s rule of reason was born out of a thirty-year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.
This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up …
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
All Faculty Scholarship
A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended when the Supreme Court held that the sale of a patented article exhausts the patentee seller’s rights to enforce restrictions on that article through patent infringement suits. Further, reversing the Federal Circuit, the parties cannot bargain around this rule through the seller’s specification of conditions stated at the time of sale, no matter how clear. No inquiry need be made into the patentee’s market power, anticompetitive effects, or other types of harms, whether enforcement of the condition is socially costly or …
Patent Pool Outsiders, Michael Mattioli
Patent Pool Outsiders, Michael Mattioli
Articles by Maurer Faculty
Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.
The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the …
A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman
A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman
Maine Law Review
In Illinois Tool Works Inc. v. Independent Ink, Inc., an ink manufacturer sought to invalidate patents held by a printing system manufacturer by alleging that the patents resulted in illegal tying and monopolization in violation of Sections 1 and 2 of the Sherman Act. This action was preceded by an infringement action brought by Illinois Tool Works (ITW), which was dismissed for lack of personal jurisdiction. Independent Ink (Independent) responded by seeking a judgment of non-infringement and invalidity of patents against ITW. The district court granted summary judgment in favor of ITW on both counts. The court of appeals reversed …
Do Patent Challenges Increase Competition?, Stephen Yelderman
Do Patent Challenges Increase Competition?, Stephen Yelderman
Stephen Yelderman
As a general rule, judges and scholars believe settlement is a good thing. But for nearly a century, the Supreme Court has said that patent litigation is categorically different, since it offers the chance to increase competition by freeing the public from the burdens of a monopoly. Based on this theory, and in the hopes of seeing more patent litigation fought to completion, the Court has overturned long-standing common-law doctrines, declined to enforce otherwise-valid contracts, and—in the recent case of Federal Trade Commission v Actavis, Inc—subjected patent settlements to scrutiny under the antitrust laws. Similar reasoning has resulted in legislative …
Buying Monopoly: Antitrust Limits On Damages For Externally Acquired Patents, Erik N. Hovenkamp, Herbert J. Hovenkamp
Buying Monopoly: Antitrust Limits On Damages For Externally Acquired Patents, Erik N. Hovenkamp, Herbert J. Hovenkamp
All Faculty Scholarship
The “monopoly” authorized by the Patent Act refers to the exclusionary power of individual patents. That is not the same thing as the acquisition of individual patent rights into portfolios that dominate a market, something that the Patent Act never justifies and that the antitrust laws rightfully prohibit.
Most patent assignments are procompetitive and serve to promote the efficient commercialization of patented inventions. However, patent acquisitions may also be used to combine substitute patents from external patentees, giving the acquirer an unearned monopoly position in the relevant technology market. A producer requires only one of the substitutes, but by acquiring …
Do Patent Challenges Increase Competition?, Stephen Yelderman
Do Patent Challenges Increase Competition?, Stephen Yelderman
Journal Articles
This Article is the first to seriously scrutinize the claim that patent challenges lead to increased competition. It identifies a number of conditions that must hold for a patent challenge to provide this particular benefit, and evaluates the reasonableness of assuming that the pro-competitive benefits of patent challenges are generally available. As it turns out, there are a number of ways these conditions can and regularly do fail. This Article synthesizes legal doctrine, recent empirical scholarship, and several novel case studies to identify categories of challenges in which the potential benefits for competition are smaller than previously thought or, in …
Book Review: Foreign Commerce And The Antitrust Laws. By Wilbur L. Fugate. Boston: Little, Brown & Co., 2d Ed. 1973. Pp Xxv, 491. $35.00., Paul P. Harbrecht
Book Review: Foreign Commerce And The Antitrust Laws. By Wilbur L. Fugate. Boston: Little, Brown & Co., 2d Ed. 1973. Pp Xxv, 491. $35.00., Paul P. Harbrecht
Georgia Journal of International & Comparative Law
No abstract provided.
Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp
Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp
All Faculty Scholarship
This essay, written as a response to John F. Duffy and Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, 102 VA. L. REV. 1 (2016), argues that the patent exhaustion (first sale) doctrine developed as a creature of federalism, intended to divide the line between the law of patents, which by that time had become exclusively federal, and the law of patented things, which were governed by the states. Late nineteenth and early twentieth century courts were explicit on the point, in decisions stretching from the 1850s well into the twentieth century.
By the second half of …
Describing Drugs: A Response To Professors Allison And Ouellette, Jacob S. Sherkow
Describing Drugs: A Response To Professors Allison And Ouellette, Jacob S. Sherkow
Articles & Chapters
Profs. Allison and Ouellette’s Article, How Courts Adjudicate Patent Definiteness and Disclosure, 65 Duke L.J.609 (2015), on courts’ adjudication of certain patent disputes presents some surprising data: pharmaceutical patents litigated to judgment fare substantially worse on written-description analyses if they are not part of traditional pioneer-generic litigation. This Response engages in several hypotheses for this disparity and examines the cases that make up Allison and Ouellette’s dataset. An analysis of these cases finds that the disparity can be best explained by technological and judicial idiosyncrasies in each case, rather than larger differences among pharmaceutical patent cases. This finding contextualizes …
Protecting Products Versus Platforms, Jacob S. Sherkow
Protecting Products Versus Platforms, Jacob S. Sherkow
Articles & Chapters
Patents have long been the most important legal assets of biotech companies. Increasingly, however, biotech firms find themselves on one side of a divide: as either traditional product companies or platform companies. Given the differences between these two types of business models, the merits of intellectual property (IP) protection vary between them. This article explores how those differences relate to biotech startups and entrepreneurs seeking to protect their inventions.
Antitrust And Information Technologies, Herbert Hovenkamp
Antitrust And Information Technologies, Herbert Hovenkamp
Herbert Hovenkamp
Technological change strongly affects the use of information to facilitate anticompetitive practices. The effects result mainly from digitization and the many products and processes that it enables. These technologies also account for a significant portion of the difficulties that antitrust law encounters when its addresses intellectual property rights. Changes in the technologies of information also affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm. For example, digital technology affects the way firms exercise market power, but it also imposes serious measurement difficulties. In purely digital markets intellectual property rights are crucial …
Antitrust And The Patent System: A Reexamination, Herbert J. Hovenkamp
Antitrust And The Patent System: A Reexamination, Herbert J. Hovenkamp
All Faculty Scholarship
Since the federal antitrust laws were first passed they have cycled through extreme positions on the relationship between competition law and the patent system. Previous studies of antitrust and patents have generally assumed that patents are valid, discrete, and generally of high quality in the sense that they further innovation. As a result, increasing the returns to patenting increases the incentive to do socially valuable innovation. Further, if the returns to the patentee exceed the social losses caused by increased exclusion, the tradeoff is positive and antitrust should not interfere. If a patent does nothing to further innovation, however, then …
A Market Reliance Theory For Frand Commitments And Other Patent Pledges, Jorge L. Contreras
A Market Reliance Theory For Frand Commitments And Other Patent Pledges, Jorge L. Contreras
Utah Law Review
Patent holders are, with increasing frequency, making public promises to refrain from asserting patents under certain conditions, or to license patents on terms that are “fair, reasonable and nondiscriminatory” (FRAND). These promises or “patent pledges” generally precede formal license agreements and other contracts, but are nevertheless intended to induce the market to make expenditures and adopt common technology platforms without the fear of patent infringement. But despite their increasing prevalence, current contract, property, and antitrust law theories used to explain and enforce patent pledges have fallen short. Thus, a new theory is needed to secure the market-wide benefits that patent …
The Rule Of Reason And The Scope Of The Patent, Herbert J. Hovenkamp
The Rule Of Reason And The Scope Of The Patent, Herbert J. Hovenkamp
All Faculty Scholarship
For a century and a half the Supreme Court has described perceived patent abuses as conduct that reaches "beyond the scope of the patent." That phrase, which evokes an image of boundary lines in real property, has been applied to both government and private activity and has many different meanings. It has been used offensively to conclude that certain patent uses are unlawful because they extend beyond the scope of the patent. It is also used defensively to characterize activities as lawful if they do not extend beyond the patent's scope. In the first half of the twentieth century the …