Law Commons^™

Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp

All Faculty Scholarship

A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – …

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

All Faculty Scholarship

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 …

Toward An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

Seattle University Law Review

The predominant view in the antitrust field has been that private enforcement, and especially class action cases, yields little or no positive results. This Article analyzes these twenty cases, compares and contrasts their analysis with that of our earlier group of forty cases, and draws new insights from the results of all sixty combined. This Article demonstrate that private antitrust litigation has provided a substantial amount of compensation for victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also demonstrate that private antitrust enforcement has had an extremely strong deterrent effect. In fact, this research demonstrates that …

Harm To Competition Or Innovation, 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 differs from IP/antitrust casebooks in that 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 …

Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp

All Faculty Scholarship

The Ninth Circuit may soon consider whether challenges to antitrust activity that occurs abroad must invariably be addressed under the rule of reason, which will make criminal prosecution difficult or impossible.

When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of …

Reasoning Per Se And Horizontal Price Fixing: An Emerging Trend In Antitrust Litigation?, Joseph W. Defuria Jr.

Pepperdine Law Review

No abstract provided.

A More Harmonious Approach To Evaluate Pharmaceutical Patent Litigation’S “Reverse Payment Settlements”: What About The Patents?, Wenhao Leu

Wenhao Leu

"Reverse Payment Settlements" in pharmaceutical patent litigations represent one of the most challenging legal issues to resolve today because the courts do not have the right tools to do so. Though sharp divisions exist among the circuit courts with application of different tests, none of them has yet to achieve the right balance between the patentees' right to exclude and consumers' need for cheaper generic drugs.

This paper examines more closely the IP aspects of Reverse Payment Settlement agreements—the pharmaceutical patents—in order to resolve their antitrust issues. With weaker patents that are susceptible to invalidation or findings of non-infringement, pharmaceutical …

Competition In Information Technologies: Standards-Essential Patents, Non-Practicing Entities And Frand Bidding, Herbert J. Hovenkamp

All Faculty Scholarship

Standard Setting is omnipresent in networked information technologies. Virtually every cellular phone, computer, digital camera or similar device contains technologies governed by a collaboratively developed standard. If these technologies are to perform competitively, the processes by which standards are developed and implemented must be competitive. In this case attaining competitive results requires a mixture of antitrust and non-antitrust legal tools.

FRAND refers to a firm’s ex ante commitment to make its technology available at a “fair, reasonable and nondiscriminatory royalty.” The FRAND commitment results from bidding to have one’s own technology selected as a standard. Typically the FRAND commitment is …

Merger Settlement And Enforcement Policy For Optimal Deterrence And Maximum Welfare, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Merger enforcement today relies on settlements more than litigation to resolve anti-competitive concerns. The impact of settlement policy on welfare and the proper goals of settlement policy are highly controversial. Some argue that gun-shy agencies settle for too little while others argue that agencies use their power to delay to extract over-reaching settlement terms, even when mergers are not welfare-reducing. This article uses decision theory to throw light on this controversy. The goal of this article is to formulate and analyze agency merger enforcement and settlement commitment policies in the face of imperfect information, litigation costs, and delay risks by …

El Desempeño Como Litigante De La Fne Una Mirada Cuantitativa, Diego G. Pardow

Diego G. Pardow

This paper evaluates the performance on Antitrust cases of the Chilean public enforcer (Fiscalía Nacional Económica, “FNE”), presenting an approach that frames its differences with private plaintiffs in terms of the effort that each of them should deliver during the trial. The presence of the FNE in a particular case is used to draw the line between public and private enforcement, while the number of hearings is considered as a proxy of the joint effort delivered by the parties. The results show that the FNE outperforms private palintiffs in a large number of cases where the defendant’s effort is relatively …