The Antitrust Review Of The Americas 2013: US: Recent Developments in Intellectual Property Antitrust Law

United States antitrust laws seek to encourage free and open competition by preventing exclusionary conduct that threatens the competitive process. Intellectual property rights (IPR) laws, by contrast, are designed to encourage innovation by granting IPR holders a limited statutory right to exclude competition. Compared to many jurisdictions, US law balances this tension more frequently in favour of the IPR holder. Here, IPR holders are allowed to generally enforce their statutory right to exclude and to unilaterally decide with whom (if anyone) they will license their IPR and on what terms. Still, IPR does not confer a privilege or immunity to violate the antitrust laws. IPR holders risk violating those laws when they unlawfully acquire IPR (eg, through fraud on the rights-granting agency, typically the United States Patent and Trademark Office), or with respect to lawfully acquired IPR by:

• enforcing those rights in bad faith (for example, against parties as to whom there is no colourable infringement claim);

• leveraging IPR to obtain competitive benefits not attributable to those rights; or

• acting collectively, rather than unilaterally, when enforcing those rights.

The interface between antitrust and IPR law has been a subject of continuing interest to the US antitrust agencies (the Department of Justice (DoJ) Antitrust Division and the Federal Trade Commission (FTC)). Through enforcement efforts, advocacy filings and legislative outreach, the agencies have sought to ‘determine the correct balance between the rightful exercise of patent rights and a patent holder’s incentive and ability to harm competition through the anticompetitive use of those rights’.

Originally Published by Global Competition Review - 2013.

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