Since the advent of antitrust enforcement in the United States through the Sherman Act in 1890, antitrust law and patent law have endured an uneasy relationship. Initial cases treated patents as superior to competition. Patentees once were “the owner of a monopoly recognized by the Constitution and by the statutes of Congress.” Gradually throughout the…
One of the most complex and daunting challenges facing competition regulators is the evolving intersection of antitrust and intellectual property law. Given that both antitrust law and patent law seek to enhance consumer welfare and promote innovation, but do so through very different mechanisms, it is natural for regulators to struggle when harmonizing monopoly-granting patent…
Over the last decade, the patent landscape has been dramatically altered by the rise of entities whose business model is to acquire significant patent portfolios and aggressively pursue license fees from businesses selling products that may infringe on some of those patents. Such companies are known as “non-practicing entities” (NPEs) or “patent assertion entities” (or,…
On 16 July 2012, a U.S. appeals court issued a decision holding that pharmaceutical patent settlements that restrict generic entry and contain a payment to the generic company are presumptively unlawful under the U.S. antitrust laws. The decision is a major victory for the U.S. Federal Trade Commission’s view of pharmaceutical patent settlements with so-called…
The patent wars have become a real drag on the economy. A recent study estimated that the direct cost of patent trolls, firms that use patents solely as a source of securing revenue from litigation, exceeded $29 billion. The real costs in litigation: delayed innovation and loss of consumer choice are even greater. Now, the…
When competitors form a truce, consumers need to worry because often they find ways to make consumers pay more by cutting off competition. Nowhere is that a more big-ticket concern than an alliance between Nokia and Microsoft, waging a potential patent war on their smart phone rivals and potentially costing consumers millions of dollars in…
The U.S. Supreme Court recently issued a decision that provides generic pharmaceutical manufacturers with the ability to challenge the “use codes” listed by brand name manufacturers in filings made with the U.S. Food and Drug Administration (“FDA”). The decision in Caraco v. Novo Nordisk illustrates the impact that these “use codes” can have on the…
The following is an excerpt of an article that appeared in The Computer & Internet Lawyer, Volume 28, Number 6, June 2011. Never ask for whom the bell tolls. Computer and Internet lawyers should be following developments in the law affecting the rights of innovator and generic pharmaceutical manufacturers to settle their Hatch-Waxman patent infringement…
