Intellectual Property Law Commons^™

Rethinking The Key Role Of Private Antitrust Enforcement, Filippo Lancieri

Georgetown Law Faculty Publications and Other Works

This Article focuses on the institutional design of American competition policy. It argues that any long-term effective revival of U.S. antitrust policy requires a better acknowledgement of the key and irreplaceable role played by private litigation and proposes a rethink of private anti-trust enforcement policy.

To unpack the nuanced interconnection between public and private competition enforcement, the Article begins by tracing the rise and fall of private antitrust. It builds on a novel, hand-coded, and comprehensive analysis of the entire Supreme Court antitrust track record—all 474 decisions over 130 years—to outline how an ideologically …

You Wanted The Best? You Got The Best! If You Can Pay For It... Antitrust Considerations And Artist-Based Solutions For Lower Concert Ticket Prices, Jake Farbman

Georgia Journal of Law & Technology

The live music industry has become increasingly inaccessible to fans as ticket prices continue to rise under the dominance of Live Nation Entertainment and Ticketmaster. Since their controversial 2010 merger, the two companies have consolidated control over both the primary and secondary ticketing markets, fostering anticompetitive practices that allegedly include exclusive venue agreements, coercive bundling of promotion and ticketing services, and dynamic pricing schemes. These practices have drawn widespread scrutiny from lawmakers, regulators, artists, and consumers alike, culminating in the Department of Justice’s 2024 antitrust lawsuit seeking to break up the conglomerate.

This Article traces the historical development of the …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Time Is Money And Anticompetitive: The Luxury Watch Industry's Weaponization Of Intellectual Property Against The Right To Repair, Isha Jadhav

American University Business Law Review

Since 2010, the Federal Trade Commission (FTC), Department of Justice (DOJ), legislators, and activists have jointly worked together to implement consumer rights in repairing personal property on both a state and federal level in the United States. These efforts have largely targeted the automobile and technology industries; these sectors have been known to “tie” their goods to authorized repair services, limiting consumer choice on where, how, and when to repair their goods. However, this issue is not limited to the automobile and technology industries, as luxury watches have gained newfound popularity, creating right to repair issues within the industry.

Despite …

Jerking The Rug Out From Under A Trade Secret Licensee: Is Transfer Of The Patent A Remedy?, Henry H. Perritt Jr.

Michigan Technology Law Review

Predominantly state trade secret law and exclusively federal patent law enjoy a sometimes-uneasy coexistence. Inventions almost always are secret until and unless they are patented; publicizing them for too long will negate the availability of a patent. Misappropriation of trade secrets often is accompanied by application for a patent on the same subject matter. This commonly occurs when an employee gains access to his employer’s trade secrets, quits, and then applies for a patent on them in his own name, maybe after going to work for a competitor of the original employer. It is also conceivable that the owner of …

The Role Of Antitrust In Innovation: Standard Essential Patents, Alexandra Perez

Marquette Intellectual Property & Innovation Law Review

A Standard Essential Patent (SEP) is a patent that is chosen to streamline a chosen industry standard to promote economic growth and consumer satisfaction. Consumers interact with SEPs in almost everything they do in their daily life, from connecting to WIFI to charging any device. This is possible because the patent selection process requires patent owners to license their patents on fair, reasonable, and non-discriminatory terms (FRAND) upon selection.  Yet, without proper regulation, this is easier said than done. Often SEP implementers are left with two options, entering exploitative agreements or rely on litigation to address unchecked anticompetitive behavior. This …

Ip, At, And Aaas: What Intellectual Property Can Teach Antitrust About The War On Amazon Basics, Kristen Osenga

Law Faculty Publications

Amazon is magical. Search the online marketplace for pretty much anything you can imagine—not to mention all the things you never imagined; you will likely find what you were searching for and be able to have it delivered in two days or less. The magic is not just in Amazon’s vast array of innovative consumer products but also in its providing access to goods that are unavailable locally. An extreme example of Amazon’s ability to supply goods that were not locally available may be found in the pandemic lockdowns of 2020, when neighborhood stores were out of toilet paper and …

All For One, One For None: Arrington V. Burger King Worldwide And The Single-Entity Defense For Franchises, Tyler Nappo

Cardozo Law Review

Section 1 of the Sherman Antitrust Act (Sherman § 1) proclaims contracts, combinations, or conspiracies in restraint of trade or commerce to be illegal. Thus, for an agreement to fall within Sherman § 1’s boundaries, there must be a joining together of separate actors or entities. However, for over a century since the Sherman Act’s enactment, courts have struggled to draw the line between separate business entities and single entities. This distinction became more defined with the Supreme Court’s holding in Copperweld Corp. v. Independence Tube Corp. that parent companies are incapable of conspiring with wholly owned subsidiaries. But Copperweld …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Georgia Law Review

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Antitrust Regulation Of Copyright Markets, Jacob Noti-Victor, Xiyin Tang

Articles

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.

This Article examines …

Compulsory Licensing: A Potential Solution To The Antitrust Dilemma Of Technology Standards Setting, Shen Peng

Northwestern Journal of Technology and Intellectual Property

The Constitution grants patent owners exclusive rights over their inventions to “promote the Progress of Science.”1 This clause was drafted based on the belief that monetary incentives granted to the first inventor, such as the proceeds from selling and licensing the invention, will foster new ideas and accelerate innovation to the benefit of the public welfare. However, when the first inventor is the sole benefactor of the rewards from the innovation, subsequent innovation may be stifled.

For instance, the first person to invent the idea of a mobile phone but lacking the right to use the underlying technologies essential to …

Intellectual Property, Antitrust, And Access To Essential Technologies, Joy Y. Xiang

Lewis & Clark Law Review

This Article explores whether and how we may leverage antitrust law to calibrate the exploitation of intellectual property (“IP”) rights—e.g., IP licensing—to facilitate needed access to essential technologies. The Article’s motivation is to help developing countries find an effective way to address their complaints that owners of IP-protected technologies refuse to license needed technologies or charge unfairly high prices. The Article concludes that leveraging antitrust law unilaterally to address these typical challenges developing countries experience in accessing essential technologies may be more effective and efficient than attempting to change the IP regime. The IP regime is governed by negotiated and …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Preserving The Royalty-Free Standards Ecosystem, Jorge L. Contreras, Rudi Bekkers, Brad Biddle, Enrico Bonadio, Michael A. Carrier, Bernard Chao, Charles Duan, Richard J. Gilbert, Joachim Henkel, Erik Hovenkamp, Martin Husovec, Kai Jacobs, Dong-Hyu Kim, Mark A. Lemley, Brian J. Love, Luke Mcdonagh, Fiona M. Scott Morton, Jason M. Schulz, Timothy Simcoe, Jennifer M. Urban, Joy Y. Xiang

Utah Law Faculty Scholarship

It has long been recognized in Europe and elsewhere that standards-development organizations (SDOs) may adopt policies that require their participants to license patents essential to the SDO’s standards (standards-essential patents or SEPs) to manufacturers of standardized products (“implementers”) on a royalty-free (RF) basis. This requirement contrasts with SDO policies that permit SEP holders to charge implementers monetary patent royalties, sometimes on terms that are specified as “fair, reasonable and nondiscriminatory” (FRAND). As demonstrated by two decades of intensive litigation around the world, FRAND royalties have given rise to intractable disputes regarding the manner in which such royalties should be calculated …

Competition And Innovation: The Breakup Of Ig Farben, Felix Poege

Faculty Scholarship

The relationship between competition and innovation is difficult to disentangle, as exogenous variation in market structure is rare. The 1952 breakup of Germany’s leading chemical company, IG Farben, represents such a disruption. After the Second World War, the Allies occupying Germany imposed the breakup because of IG Farben’s importance for the German war economy instead of standard antitrust concerns. In technology areas where the breakup reduced concentration, patenting increased strongly, driven by domestic firms unrelated to IG Farben. An analysis of patent texts shows that an increased propensity to patent does not drive the effect. Descriptively, IG Farben’s successors increased …

National Frand Rate-Setting Legislation: A Cure For International Jurisdictional Competition In Standards-Essential Patent Litigation?, Jorge L. Contreras

Utah Law Faculty Scholarship

Courts have increasingly been asked to adjudicate disputes over the level of fair, reasonable and nondiscriminatory (“FRAND”) royalty rates that holders of standards-essential patents (“SEPs”) are permitted to charge manufacturers of standardized products. Courts making these determinations may assess FRAND rates only as to SEPs issued in their own countries (the “national FRAND approach”) or as to all SEPs worldwide that would be included in a license had it been negotiated by the parties (the “global FRAND approach”). These competing approaches are discussed, along with some of the international jurisdictional issues that they have raised and potential legislative solutions that …

Licensed To Rock The Campaign Trail: Are The Ascap And Bmi Political Campaign Licenses Violating Their Antitrust Consent Decrees?, Leah Scholnick

Cardozo Law Review

No abstract provided.

Patents On 5g Standards Are Not Matters Of National Security, Jorge L. Contreras

Utah Law Faculty Scholarship

Recent arguments for stronger patent rights, particularly on 5G wireless telecommunications technologies, are relevant to discussions of national industrial policy and economic development, but are not matters of national security.

Balance And Standardization: Implications For Competition And Antitrust Analysis, Justus Baron, Jorge L. Contreras, Pierre Larouche

Utah Law Faculty Scholarship

Most technical standards development organizations (SDOs) have adopted internal policies embodying “due process” criteria such as openness, balance of interests, consensus decision making, and appeals. Unlike other aspects of SDO governance, relatively little scholarly research has considered the history, scope, and interpretation of SDO balance requirements. Likewise, existing case law and agency guidance offer little assistance in understanding precisely how these balance principles translate into specific antitrust requirements that apply to standards development. Given the absence of specific guidance on the meaning and implications of balance requirements for SDOs under the antitrust laws, it is necessary to review the development …

Trademark, Labor Law, And Antitrust, Oh My!, Jessica Silbey

Faculty Scholarship

I am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies.

A Framework For Evaluating Willingness Of Frand Licensees, Jorge L. Contreras

Utah Law Faculty Scholarship

An increasing number of cases around the world turn on whether a manufacturer of a product – e.g., a smartphone, a tablet or a car -- (an “implementer”) is willing to pay a “fair, reasonable and nondiscriminatory” (FRAND) royalty for patents that are essential to an industry standard embodied in that product (standards-essential patents or SEPs). This determination is important both to the analysis of the appropriateness of an injunction under the 4-factor eBay test in the U.S., and for assessing the appropriateness of injunctive relief under the Huawei v. ZTE competition law case in the EU. This essay explores …

Balance Requirements For Standards Development Organizations: A Historical, Legal And Institutional Assessment, Justus Baron, Jorge L. Contreras, Pierre Larouche

Utah Law Faculty Scholarship

Most technical standards-development organizations (SDOs) have adopted internal policies embodying “due process” criteria such as openness, balance of interests, consensus decision making and appeals. These requirements arise from numerous sources including antitrust law, international trade law, public procurement requirements and institutional norms. Yet balance criteria lack a generally-accepted definition and the manner in which they are implemented varies, sometimes dramatically, among SDOs. Recently, there has been a renewed interest in the principle that SDOs should ensure a balance of interests among their stakeholders, including in the development of intellectual property rights policies. This article explores the origins and meaning of …

The Music Industry: Drowning In The Stream, Jonathan Croskrey

Journal of the National Association of Administrative Law Judiciary

The Department of Justice is reviewing two of it's oldest consent decrees, which were entered into with ASCAP and BMI. ASCAP and BMI are the two original performing rights organizations and existed well before streaming. This article analyzes copyright and antirust law through the lens of modern technology and the current landscape of the music industry. It examines whether the consent decrees should be removed or modified and what the consequences of each would be.

United States Supreme Court Ip Cases, 1810–2019: Measuring & Mapping The Citation Networks, Joseph Scott Miller

Catholic University Law Review

Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …

“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 …

Hacking Antitrust: Competition Policy And The Computer Fraud And Abuse Act, Charles Duan

Scholarly Articles in Law Reviews & Journals

The Computer Fraud and Abuse Act, a federal computer trespass statute that prohibits accessing a computer "without authorization or exceeding authorized access," has often been criticized for clashing with online norms, over-criminalizing common behavior, and infringing freedom-of-expression interests. These controversies over the CFAA have raised difficult questions about how the statute is to be interpreted, with courts of appeals split on the proper construction and the Supreme Courtset to consider the law in its current October Term 2020.

This article considers the CFAA in a new light, namely its effects on competition. Rather than merely preventing injurious trespass upon computers, …

Race Cartels: How Constructor Collaboration Is Curbing Innovation In Formula 1, Chandler C. Gerard-Reimer

Vanderbilt Journal of Entertainment & Technology Law

Formula 1 is in the midst of a copycat scandal: technology has made it possible for teams to reverse engineer clones of competitors’ race cars. This is a less than ideal state of affairs for the championship series, which prides itself on being the pinnacle of motorsport and automotive innovation, thanks in large part to the cars’ rapid rate of technological advancement. In order to address this problem, the Fédération Internationale de l’Automobile (FIA), Formula 1’s governing body, must increase independent innovation efforts by amending the technical regulations to restrict the extent of presently allowed inter-team collaboration. Worried that the …

Antitrust And Competition Issues, Jorge L. Contreras

Utah Law Faculty Scholarship

This Chapter offers a broad overview of the impact of U.S. antitrust laws on IP licensing and transactions. A basic understanding of antitrust law is critical to the analysis of IP licensing arrangements, whether concerning patents, copyrights or trademarks. This chapter offers a summary of the antitrust doctrines that arise frequently in IP and technology-focused transactions — price fixing and market allocation, resale price maintenance, tying, monopolization, refusals to deal, standard setting and pay-for-delay settlements, with coverage of the major cases and enforcement agency guidance. Antitrust issues also play a role in the analysis of joint ventures, which are discussed …

No License, No Problem – Is Qualcomm’S Ninth Circuit Antitrust Victory A Patent Exhaustion Defeat?, Jorge L. Contreras, Jorge L. Contreras

Utah Law Faculty Scholarship

The Ninth Circuit’s recent decision in FTC v. Qualcomm (9th Cir., Aug. 11, 2020) is generally viewed as a resounding victory for Qualcomm. But in praising Qualcomm’s egalitarian approach toward rival chip makers, the Ninth Circuit points out that instead of granting licenses to these rivals, Qualcomm merely “declines to enforce its patents” against them “even though they practice Qualcomm’s patents”. As such, the Ninth Circuit states that Qualcomm’s “policy toward rival chipmakers could be characterized as ‘no license, no problem’”. Yet, from the standpoint of patent exhaustion, this approach could actually be a very big problem, not only for …