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Part IV Special Issues in Technology Markets, 8 The Noerr-Pennington Doctrine

Edited By: Lars Kjølbye

From: Antitrust and Patent Law

Alan Devlin
Edited By: Lars Kjølbye (Consultant editor)

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 22 October 2021

European Union — Copyright — Rights — Technology transfer agreements — United States

This chapter explains the Noerr-Pennington doctrine. Noerr-Pennington is a US doctrine with quasi-constitutional dimensions founded in the First Amendment. It immunizes a firm in petitioning the government, even when the firm asks the state to eliminate competition. Noerr is a corollary of the right to participate in the democratic process, and reflects the state’s freedom to hinder competition and the citizens’ right to drive government policy. As Noerr immunizes non-sham litigation, it carves out broad immunity for patentees that sue technology users. For US antitrust lawyers, Noerr is critical. Often dispositive, but misunderstood, it gives patentees a powerful defence. For plaintiffs who challenge anticompetitive patent assertion, overcoming the doctrine is also crucial. The chapter also explores analogous EU law founded in the General Court’s ITT Promedia decision of 1998.

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