Law Commons^™

Frand And Antitrust, Herbert J. Hovenkamp

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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 …

The Walker Process Doctrine: Infringement Lawsuits As Antitrust Violations, Herbert J. Hovenkamp

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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 …

Patent Deception In Standard Setting: The Case For Antitrust Policy, Herbert J. Hovenkamp

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Many patent applications are rejected upon initial submission, but they are almost never rejected with absolute finality. Further, subsequent to filing its original application a patent applicant might wish to write an application with broader or somewhat different claims, or perhaps add claims that were not made in the original application. Or it may wish to rewrite claims that had been rejected in the original application. A patent "continuation" is an application for additional claims made on a patent that was previously applied for.

Under generally accepted patent practices in the United States, when a subsequent continuation or divisional application …

The Intellectual Property-Antitrust Interface, Herbert J. Hovenkamp

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This historical overview examines the relationship between antitrust policy and intellectual property in the United States since 1890. Over most of this history, judges imagined far greater conflicts between antitrust policy and intellectual property rights than actually existed, or else relied on sweeping generalizations rather than close analysis. For example, they often assumed that the presence of an intellectual property right led to anticompetitive effects where there was no basis for finding any injury to competition at all. At the other extreme, they often concluded that an intellectual property right immunized seriously anticompetitive conduct even when the intellectual property statute …

Standards Ownership And Competition Policy, Herbert J. Hovenkamp

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Antitrust law is a blunt instrument for dealing with many claims of anticompetitive standard setting. Antitrust fact finders lack the sophistication to pass judgment on the substantive merits of a standard. In any event, antitrust is not a roving mandate to question bad standards. It requires an injury to competition, and whether the minimum conditions for competitive harm are present can often be determined without examining the substance of the standard itself.

When government involvement in standard setting is substantial antitrust challenges should generally be rejected. The petitioning process in a democratic system protects even bad legislative judgments from collateral …