Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Antitrust (4)
- Drugs (2)
- FTC (2)
- Hatch-Waxman (2)
- Innovation (2)
-
- Paragraph IV (2)
- Patent (2)
- Patents (2)
- Pay for delay (2)
- Pharmaceuticals (2)
- Regulation (2)
- Reverse payment (2)
- Settlement (2)
- 9/11 (1)
- Actavis (1)
- Civil Procedure (1)
- Civil procedure (1)
- Class actions (1)
- Class defenses (1)
- Complex litigation (1)
- Copyright (1)
- Copyright Law (1)
- Dukes (1)
- Employment discrimination (1)
- General defenses (1)
- Hatch-waxman (1)
- Individualized defenses (1)
- Inequitable conduct (1)
- Intellectual Property (1)
- Intellectual property (1)
Articles 1 - 6 of 6
Full-Text Articles in Civil Procedure
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
All Faculty Scholarship
In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.
This paper is an effort to assist courts …
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
All Faculty Scholarship
The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.
As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to …
Competition Policy And The Patent System, Herbert J. Hovenkamp
Competition Policy And The Patent System, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses …
Intellectual Property Defenses, Gideon Parchomovsky, Alex Stein
Intellectual Property Defenses, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
In this Essay, we offer an integrated theory of intellectual property defenses. We demonstrate that all intellectual property defenses can be fitted into three conceptual categories: general, individualized and class defenses. A general defense is the inverse of a right in rem. It goes to the validity of the intellectual property right asserted by the plaintiff, and when raised successfully it relieves not only the actual defendant, but also the public at large, of the duty to comply with the plaintiff’s intellectual property right. An individualized defense, as we define it, is the inverse of an in personam right: it …
Managerial Judging And Substantive Law, Tobias Barrington Wolff
Managerial Judging And Substantive Law, Tobias Barrington Wolff
All Faculty Scholarship
The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.
In this Article, I examine the interface between substantive law and managerial …
The Walker Process Doctrine: Infringement Lawsuits As Antitrust Violations, Herbert J. Hovenkamp
The Walker Process Doctrine: Infringement Lawsuits As Antitrust Violations, Herbert J. Hovenkamp
All Faculty Scholarship
Antitrust law's Walker Process doctrine permits a patent infringement defendant to show that an improperly maintained infringement action constitutes unlawful monopolization or an unlawful attempt to monopolize. The infringement defendant must show both that the lawsuit is improper, which establishes the conduct portion of the violation and generally satisfies tort law requirements, and also that the structural prerequisites for the monopolization offense are present. The doctrine also applies to non-patent infringement actions and has been applied by the Supreme Court to copyright infringement actions. Walker Process itself somewhat loosely derives from the Supreme Court's Noerr-Pennington line of cases holding that …