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Articles 1 - 13 of 13
Full-Text Articles in Law
The Antitrusting Of Patentability, Saurabh Vishnubhakat
The Antitrusting Of Patentability, Saurabh Vishnubhakat
Faculty Scholarship
Deciding a patent’s validity is costly, and so is deciding it incorrectly. Judges and juries must expend significant resources in order to reach a patent validity determination that is properly informed by the relevant facts. At the same time, patent validity determinations reached quickly and cheaply may conserve resources today while creating future costs. Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation. Meanwhile, wrongly striking down a valid patent can undermine incentives for continued investment and commercialization in knowledge assets. Courts facing patent validity issues have begun to strike this balance …
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
Aaron Edlin
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 and …
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help courts and counsel …
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
Aaron Edlin
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 confirm …
Counter-Ip Conspiracies: Patent Alienability And The Sherman Antitrust Act, Hannibal Travis
Counter-Ip Conspiracies: Patent Alienability And The Sherman Antitrust Act, Hannibal Travis
University of Miami Law Review
Anticompetitive collusion by intellectual property owners frequently triggered antitrust enforcement during the twentieth century. An emerging area of litigation and scholarship, however, involves conspiracies by potential licensees of intellectual property to reduce or eliminate opportunities by a property’s holders to profit from it, or even to recoup their investments in creating and protecting it. The danger is that potential licensees will collude with one another to suppress royalties or sale prices. This Article traces the history of such litigation, provides an overview of the scholarly and theoretical arguments against monopsonistic or oligopsonistic collusion against licensors of intellectual property, and summarizes …
The Ieee-Sa Revised Patent Policy And Its Definition Of “Reasonable” Rates: A Transatlantic Antitrust Divide?, Nicolas Petit
The Ieee-Sa Revised Patent Policy And Its Definition Of “Reasonable” Rates: A Transatlantic Antitrust Divide?, Nicolas Petit
Fordham Intellectual Property, Media and Entertainment Law Journal
The Institute of Electrical and Electronics Engineers Standards Association’s (“IEEE-SA”) updated patent policy and a business review letter issued by the United States Department of Justice (“DOJ”) have caused much discussion in the United States. The purpose of this Article is to assess whether a similarly lenient antitrust approach to Standard Setting Organizations’ (“SSOs”) rate-setting policies would prevail under the European Union’s (“EU”) competition rules. Recent EU competition case law has promoted a very hard line in the area of coordinated conduct. Cases such as Dole Food Company, Inc. v. European Commission, T-Mobile Netherlands BV v. Raad van bestuur van …
Big Pharma Monopoly: Why Consumers Keep Landing On "Park Place" And How The Game Is Rigged, Mark S. Levy
Big Pharma Monopoly: Why Consumers Keep Landing On "Park Place" And How The Game Is Rigged, Mark S. Levy
American University Law Review
No abstract provided.
The Circular Logic Of Actavis, Joshua B. Fischman
The Circular Logic Of Actavis, Joshua B. Fischman
American University Law Review
No abstract provided.
Citizen Petitions: Long, Late-Filed, And At-Last Denied, Michael A. Carrier, Carl Minniti
Citizen Petitions: Long, Late-Filed, And At-Last Denied, Michael A. Carrier, Carl Minniti
American University Law Review
No abstract provided.
Promoting Access Over Ownership: Realigning Antitrust And Intellectual Property Law To Usher In An Era Of Collaborative Consumption, Adrian Kuenzler
Promoting Access Over Ownership: Realigning Antitrust And Intellectual Property Law To Usher In An Era Of Collaborative Consumption, Adrian Kuenzler
Vanderbilt Journal of Entertainment & Technology Law
Following the US Supreme Court's endorsement of the promotion of consumer welfare as the single goal of antitrust and intellectual property laws, many courts have reasserted their commitment to the market access doctrine for antitrust and intellectual property law liability. These courts have rejected the Court's submission in GTE Sylvania to adhere to a strict output/profitability test concentrating predominantly on the positive and negative welfare effects regarding allegedly infringing conduct. This Article examines several important antitrust and intellectual property law decisions and locates within them a common flaw to express an intelligible, distinct doctrinal function for giving precedence to market …
Patent Pools And Related Technology Sharing, Erik Hovenkamp, Herbert J. Hovenkamp
Patent Pools And Related Technology Sharing, Erik Hovenkamp, Herbert J. Hovenkamp
All Faculty Scholarship
A patent "pool" is an arrangement under which patent holders in a common technology commit their patents to a single holder, who then licenses them out to the original patentees and perhaps also to outsiders. The payoffs include both revenue earned as a licensor, and technology acquired by pool members as licensees. Public effects can also be significant. For example, technology sharing of complementary patents can improve product quality and variety. In some information technology markets pools can prevent patents from becoming a costly obstacle to innovation by clearing channels of technology transfer. By contrast, a pool's aggregate output reduction …
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 …
Measuring The Costs And Benefits Of Patent Pools, Michael Mattioli, Robert P. Merges
Measuring The Costs And Benefits Of Patent Pools, Michael Mattioli, Robert P. Merges
Articles by Maurer Faculty
This Article addresses a policy question that has challenged scholars and lawmakers since the 1850s: Do the transaction cost benefits of patent pools outweigh their potential for consumer harm? This question has special importance today. Patent pools are on the increase, due to large numbers of patents in critical industries such as software and mobile phones. In this Article, we present the first empirically-based estimate of the transaction costs savings engendered by patent pools. Drawing on interviews with administrators of prominent pools, we document the costs of assembling and administering a functioning pool. We then estimate the transaction costs that …