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Antitrust and Patent Law by Devlin, Alan (17th March 2016)
- Preliminary Material
- Main Text
- Part I Introduction and Recent Developments
- 1 Antitrust and Patent Law
- 2 Important Developments in Antitrust–Patent Law
- I Introduction
- II Actavis Rewrites US Antitrust and Patent Law
- 2.5
- 2.6
- 2.7
- 2.8
- A Background
- B The Supreme Court speaks in Actavis
- C Why do reverse payments less than litigation costs pass muster?
- D The larger impact of Actavis on antitrust–patent cases
- 2.22
- a The theory of Actavis
- b The potential impact of Actavis beyond pay-for-delay settlements
- 2.28
- (a) Licensing restraints
- (b) Standard-essential patents
- (c) Patent-assertion entities
- E Conclusion
- III EU Law on Reverse Payments
- IV The CJEU Limits Strategic Manipulation of the Patent System in AstraZeneca , but Retreats from an Effects-based Approach
- V The CJEU Reigns in ‘By-object’ Analysis in Cartes Bancaires
- VI The Strategic Use of Standard-Essential Patents
- VII Antitrust Issues Surrounding Patent-Assertion Entities
- Part II The Patent and Antitrust Laws of Europe and America
- 3 The Patent Crisis and its Antitrust Implications
- I Introduction
- II The Patent System’s Economic Function
- III The US Patent System
- 3.43
- A The core patent right
- B The overriding importance of a patent’s claims
- C The conditions of patentability and the weak-patent problem
- D Patent litigation in the United States
- E Patent-assertion entities abuse the patent system
- F Executive and legislative action to limit abuse of the patent regime
- G Judicial steps to recalibrate the patent system
- IV Patent Law in Europe
- V Conclusion: How the Patent Crisis Implicates Competition Policy
- 4 How the EU and US Antitrust Regimes Differ
- 3 The Patent Crisis and its Antitrust Implications
- Part III Understanding the Patent–Competition Law Interface
- 5 The Relationship between Patent and Antitrust Law
- I Introduction
- II Evolving Views of the Patent–Competition Law Intersection
- III The Scope-of-the-Patent Theory Takes Hold
- A The traditional view: antitrust cabins monopoly to a patent’s claims
- B EU law evolves from an existence–exercise distinction to a scope account of the competition–patent interface
- C The ‘scope’ account is alluringly simple
- IV Dissecting the Antitrust–IP Interface and the Scope-of-the-Patent Test
- 5.91
- A ‘Patent scope’ sometimes identifies actionable anticompetitive conduct
- B Patents and baseball bats: the limits of a scope theory?
- V Conclusion: Rethinking the Patent–Antitrust Relationship
- 5 The Relationship between Patent and Antitrust Law
- Part IV Special Issues in Technology Markets
- 6 Market Definition, Monopoly Power, and Patented Technology
- I Introduction
- II Market Definition under US Law
- III The Relevant Market under EU Law
- IV Patented Technology and Market Definition
- 6.96
- A US law
- a Upstream technology markets
- b Patented technology in downstream product markets
- B EU law
- V Market Power under US and EU Law
- VI When Does a Patent Lawfully Subsume Monopoly Power?
- 7 Antitrust Issues Surrounding Open and Closed Systems
- I Overview
- II When Should Antitrust Open Up Closed Networks?
- III US Law Requires a Firm to Open a System Only in Exceptional Cases
- IV EU Law Requires Dominant Firms to Open a System When Viable Competition Requires It
- 8 The Noerr-Pennington Doctrine
- I Introduction
- II Noerr-Pennington Immunity Before the Supreme Court
- III The Lower Courts Shape Noerr-Pennington
- 8.46
- A Noerr at the Federal Circuit
- B Sham serial litigation: does PREI or Trucking Unlimited control?
- 8.62
- 8.63
- a The Ninth Circuit Leads the Way in USS–POSCO
- b The Second Circuit follows suit
- c The Fourth Circuit holds that Trucking Unlimited survives PREI
- d How many lawsuits constitute a ‘whole series’ sufficient to trigger Trucking Unlimited?
- e What success rate immunizes serial litigation as a matter of law?
- C Litigation as part of an overall scheme to violate the antitrust laws
- 8.79
- 8.80
- a Litigation does not immunize independent antitrust violations
- b The Kobe line of cases recognizes antitrust liability for non-sham patent litigation filed pursuant to an overall scheme to monopolize
- c The Second Circuit bars recovery for litigation costs
- d The Federal Circuit has alluded to ‘overall scheme’ liability for non-sham patent litigation only in dicta
- e Recent district court opinions point in opposing directions
- f Litigation and the antitrust-injury problem
- D Proving objective baselessness under PREI
- E The weight of law applies Noerr to threatened litigation
- F Does Noerr reach lawsuits filed against non-competitors?
- G Anticompetitive patent acquisitions and Noerr-Pennington immunity
- H Misrepresentations and immunity under Noerr
- I An antitrust plaintiff must still prove a substantive violation
- IV Antitrust Immunity for Filing Suit in Europe
- 6 Market Definition, Monopoly Power, and Patented Technology
- Part V Patent Hold-Up and Misuse
- 9 Manipulation of the Standard-Setting Process
- I Introduction
- II Standard-Setting Hold-Up
- III US Antitrust Limits on SEPs
- IV Antitrust Limits on SEP Assertion in the European Union
- V Conclusion
- 10 Targeted Patent Aggregation
- I Introduction
- II Anticompetitive Patent Acquisitions by Operating Companies
- A The timing of a patent acquisition as an antitrust issue
- B The economics of targeted patent aggregation
- C Case law reflects the ex ante / ex post distinction
- D Conclusion
- III Patent Aggregation by Patent-Assertion Entities
- A Overview
- B Antitrust limits on PAE patent acquisitions: theory
- C US case law on antitrust limits on PAE patent acquisitions
- IV Patent Acquisitions under EU Competition Law
- 9 Manipulation of the Standard-Setting Process
- 11 Patent Misuse
- I Introduction
- II The Rules of Patent Misuse
- III Conclusion
- Part VI Agreements Concerning Patented Technology
- 12 Technology Transfer
- I Introduction
- II US Antitrust Rules on Patent Licensing
- III Technology Transfer under EU Competition Law
- 12.54
- 12.55
- A The Technology Transfer Block Exemption Regulation
- B Licensing restrictions that do not qualify for block exemption
- C Technology pools
- 13 Exclusionary Agreements in the Biopharmaceutical Industry
- I Introduction
- II The Economic Effects of Reverse-Exclusionary Payments
- III Pay-for-Delay Agreements under US Law
- IV Reverse-Exclusionary Agreements under EU Law
- 12 Technology Transfer
- Conclusion
- Part I Introduction and Recent Developments
- Further Material
