Antitrust and Patent Law

by Alan Devlin

Overview

Patents lie at the heart of modern competition policy. In the new economy, firms use them variously to protect their R&D, to bolster their market positions, and to exclude rivals. Antitrust enforcers thus scrutinize patentees to ensure that they do not use their intellectual-property rights to suppress competition. Today's antitrust lawyers must therefore navigate intellectual-property issues and advise clients on the procurement and assertion of patents. It is no easy task. In granting exclusive rights, patents have an uneasy relationship with competition law, which struggles in turn to apply policies developed in bricks and mortar industries to the world of technology. This book explores the acquisition and use of patents under the law of the world's two most important antitrust regimes: the United States and the European Union. It examines antitrust rules governing technology transfer, standard-essential technologies, patent aggregation, open and closed systems, coercive licensing terms that amount to misuse, evergreening tactics in the pharmaceutical industry like 'paying for delay', and patentee immunity in suing for infringement. To contextualize that analysis, the book explores the theoretical relationship between patents and competition law, addresses the U.S. 'patent crisis', the move towards unitary patents in Europe, and differences between the US and EU competition regimes. Further, the book explores idiosyncrasies governing the core antitrust questions of market definition, market power, and anticompetitive conduct in the patent setting. In doing so, the book allows those who practice, enforce, teach, or study competition law to understand the subtleties of this fascinating subject.

Product Details

ISBN-13:	9780191044830
Publisher:	OUP Oxford
Publication date:	03/17/2016
Sold by:	Barnes & Noble
Format:	eBook
Pages:	528
File size:	831 KB

About the Author

Alan Devlin advises Commissioner Ohlhausen on antitrust and intellectual-property matters. Previously, he was a senior associate in the San Francisco office of Latham&Watkins LLP. He has taught as an adjunct professor at the University of Chicago, University of California Hastings College of Law, DePaul University College of Law, Trinity College Dublin, and University College Dublin. His publications include Fundamental Principles of Law and Economics (Routledge 2014), as well as over thirty law-review articles. He is a graduate of Stanford Law School, the University of Chicago, and University College Dublin.

Table of Contents

Part I: Introduction and Recent Developments
Chapter 1: Antitrust and Patent Law
1: Introduction
2: Issues at the Patent-Competition Law Intersection
3: Scrutinizing Patentee Conduct: An Antitrust Challenge
4: A Roadmap for the Book
Chapter 2: Important Developments in Antitrust-Patent Law
5: Actavis Rewrites US Antitrust & Patent Law
6: EU Law on Reverse Payments
7: The CJEU Limits Strategic Manipulation of the Patent System in AstraZeneca, But Retreats from an Effects-Based Approach
8: The CJEU Reigns In By Object Analysis in Cartes Bancaires
9: The Strategic Use of Standard-Essential Patents
10: Antitrust Issues Surrounding Patent-Assertion Entities
Part II: The Patent and Antitrust Laws of Europe and America
Chapter 3: The Patent Crisis and its Antitrust Implications
11: Introduction
12: The Patent Systems Economic Function
13: The US Patent System
14: Patent Law in Europe
15: Conclusion: How the Patent Crisis Implicates Competition Policy
Chapter 4: How the EU and US Antitrust Regimes Differ
16: Introduction
17: The Different Traits, Goals, and Policies of EU and US Antitrust Law
18: How EU and US Competition Laws Diverge
19: Firms Enjoy Less Procedural Protections in Europe
Part III: Understanding the Patent-Competition Law Interface
Chapter 5: The Relationship between Patent and Antitrust Law
20: Evolving Views of the Patent-Competition Law Intersection
21: The Scope-of-the-Patent Theory Takes Hold
22: Dissecting the Antitrust-IP Interface and the Scope-of-the-Patent Test
23: Conclusion: Rethinking the Patent-Antitrust Relationship
Part IV: Special Issues in Technology Markets
Chapter 6: Market Definition, Monopoly Power, and Patented Technology
24: Introduction
25: Market Definition under US Law
26: The Relevant Market under EU Law
27: Patented Technology and Market Definition
28: Market Power under US and EU Law
29: When Does a Patent Lawfully Subsume Monopoly Power?
Chapter 7: Antitrust Issues Surrounding Open and Closed Systems
30: Overview
31: When Should Antitrust Open Up Closed Networks?
32: US Law Requires a Firm to Open a System Only in Exceptional Cases
33: EU Law Requires Dominant Firms to Open a System When Viable Competition Requires It
Chapter 8: The Noerr-Pennington Doctrine
34: Introduction
35: Noerr-Pennington Immunity Before the Supreme Court
36: The Lower Courts Shape Noerr-Pennington
37: Antitrust Immunity for Filing Suit in Europe
Part V: Patent Hold-Up and Misuse
Chapter 9: Manipulation of the Standard-Setting Process
38: Introduction
39: Standard-Setting Hold-Up
40: US Antitrust Limits on SEPs
41: Antitrust Limits on SEP Assertion in the European Union
42: Conclusion
Chapter 10: Targeted Patent Aggregation
43: Introduction
44: Anticompetitive Patent Acquisitions by Operating Companies
45: Patent Aggregation by Patent-Assertion Entities
46: Patent Acquisitions under EU Competition Law
Chapter 11: Patent Misuse
47: Introduction
48: The Rules of Patent Misuse
49: Conclusion
Part VI: Agreements Concerning Patented Technology
Chapter 12: Technology Transfer
50: Introduction
51: US Antitrust Rules on Patent Licensing
52: Technology Transfer under EU Competition Law
Chapter 13: Exclusionary Agreements in the Biopharmaceutical Industry
53: The Economic Effects of Reverse-Exclusionary Payments
54: Pay-for-Delay Agreements under US Law
55: Reverse-Exclusionary Agreements under EU Law
Conclusion
Chapter 14: Closing Thoughts
Introduction
Part I: Understanding the IP-Competition Law Interface
1. The Evolving Relationship Between IP and Antitrust
2. Is the Patent System in Crisis?
3. Is the Patent System in Crisis?
Part II: Special Competition Problems in Technology Markets
4. Market Definition in the IP Space
5. The Meaning of Competition and Market Power in IP Markets
6. Patent Scope, Efficient Monopoly, the Limits of the IP Exception to Competition Law
Part III: Strategic Hold-Up and Patent Misuse
7. Manipulation of the Standard-Setting Process
8. Anticompetitive Patent Assertion
9. Targeted Patent Aggregation
10. Patent Misuse
Part IV: Agreements Concerning the Use of Intellectual Property
11. Joint Ventures in Technology
12. Exclusionary Agreements in the Pharmaceutical Industry
13. Patent Pools and Portfolio Cross-Licensing Agreements
14. Field-of-Use Restrictions, Grantbacks, and other Issues in Patent Licensing
Part V: Predatory Innovation
15. Designing Closed Proprietary Systems to Exclude Rivals
16. Dominant IP Owners' Sharing Obligations
17. Manipulating the Regulatory Structure to Foreclose Competition
Conclusion