Antitrust Law And Patent Settlement Design
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Antitrust Law And Patent Settlement Design
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Author : Erik Hovenkamp
language : en
Publisher:
Release Date : 2018
Antitrust Law And Patent Settlement Design written by Erik Hovenkamp and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018 with categories.
For competing firms, a patent settlement provides a rare opportunity to write an agreement that forestalls competition without transparently violating the antitrust laws. Problematically, such agreements are highly profitable for reasons that have nothing to do with resolving a patent dispute. Thus, even if the firms think the patent is very likely invalid or noninfringed, they prefer to restrain competition to monopoly and share in the proceeds. In response, antitrust has recently come to focus on how the settlement's competitive effects compare to the expected result of foregone patent litigation, which seemingly requires some assessment of the likelihood that the patentee would have prevailed. But this “case-within-a-case” approach leads to major complications in practice. Indeed, outside of one well-known settlement format--so-called “pay-for-delay” agreements--how to administer this burgeoning antitrust standard remains an open question. Applying recent work in economics, this article argues that antitrust law should reframe its settlement analysis to focus entirely on the nature of the settlement agreement--the particular way it restrains competition or otherwise redistributes profits between the firms. That is because the settlement's design is ultimately what determines how private bargaining outcomes will compare to the firms' litigation expectations. Under this approach, the antitrust question can be addressed without inquiring into the likelihood that any particular patent is valid and infringed, making it much more administrable. Instead, the focus is on how the settlement design affects private bargaining generally. This disentangles the relevant antitrust violation from the extent of the resulting harm, and can be applied to all kinds of settlement agreements. Finally, this approach is broadly consistent with the Supreme Court's recent Actavis decision. All of this points to a clear prescription for antitrust reform: evaluate the agreement, not the patent.
Intellectual Property And Antitrust Handbook
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Author :
language : en
Publisher: American Bar Association
Release Date : 2007
Intellectual Property And Antitrust Handbook written by and has been published by American Bar Association this book supported file pdf, txt, epub, kindle and other format this book has been release on 2007 with Law categories.
The Law And Economics Of Patent Damages Antitrust And Legal Process
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Author : James Langenfeld
language : en
Publisher: Emerald Group Publishing
Release Date : 2021-05-24
The Law And Economics Of Patent Damages Antitrust And Legal Process written by James Langenfeld and has been published by Emerald Group Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2021-05-24 with Business & Economics categories.
The Law and Economics of Patent Damages, Antitrust, and Legal Process examines several areas of important research by a variety of international scholars. Areas include technical papers on the appropriate way to estimate damages in patent disputes and methods for evaluating relevant markets.
Antitrust Patents And Copyright
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Author : François Lévêque (prawo)
language : en
Publisher: Edward Elgar Publishing
Release Date : 2005
Antitrust Patents And Copyright written by François Lévêque (prawo) and has been published by Edward Elgar Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2005 with Law categories.
Having been drawn into a fantasy world of his own creation, Rod Everlar continues his quest to defeat the corruption he has discovered within. He sets off in pursuit of the dark wizard Malraun, only to find that he has raised an army of monsters and mercenaries in order to conquer the world... “Best known as the creator of Forgotten Realms, the Dungeons & Dragons®-based heroic fantasy series, Greenwood continues to give his audience exactly what they want.” — Publishers Weekly “The richly detailed world of Falconfar might just convince you that Ed Greenwood, like the Dark Lord hero of this tale, does not create fantasy realms: he discovers them.” — Elaine Cunningham, New York Times best-selling author.
The Federal Antitrust Guidelines For The Licensing Of Intellectual Property
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Author :
language : en
Publisher: American Bar Association
Release Date : 2002
The Federal Antitrust Guidelines For The Licensing Of Intellectual Property written by and has been published by American Bar Association this book supported file pdf, txt, epub, kindle and other format this book has been release on 2002 with Law categories.
This is the second edition of the Antitrust Section's handbook on the Department of Justice and Federal Trade Commission's Antitrust Guidelines for the Licensing of Intellectual Property. Like its predecessor, this volume provides a description of the enforcement agencies' antitrust policy with respect to the licensing of patents, copyrights, trade secrets, and know-how. It also is updated to reflect the pertinent developments since the agencies issued their Guidelines seven years ago. Since 1995, the agencies have initiated a wide variety of enforcement actions involving intellectual property and have pursued claims ranging from alleged price fixing among patent holders to allegedly anticompetitive settlements of infringement litigation. This book discusses these enforcement actions and the recent judicial decisions in this area and also provides some historical perspective on the agencies' current policy with respect to the licensing of intellectual property. The book includes the complete text of the 1995 Department of Justice and Federal Trade Commission Antitrust Guidelines for the Licensing of Intellectual Property.
Paying For Delay
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Author : C. Scott Hemphill
language : en
Publisher:
Release Date : 2013
Paying For Delay written by C. Scott Hemphill and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with categories.
Over the past decade, drug makers have settled patent litigation by making large payments to potential rivals who, in turn, abandon suits that (if successful) would increase competition. Because such "pay-for-delay" settlements postpone the possibility of competitive entry, they have attracted the attention of antitrust enforcement authorities, courts, and commentators. Pay-for-delay settlements not only constitute a problem of immense practical importance in antitrust enforcement, but also pose a general dilemma about the proper balance between innovation and consumer access. This Article examines the pay-for-delay dilemma as a problem in regulatory design. A full analysis of the relevant industry-specific regulatory statute, the Hatch-Waxman Act, yields two conclusions. First, certain features of the Act widen, often by subtle means, the potential for anticompetitive harm from pay-for-delay settlements. Second, the Act reflects a congressional judgment favoring litigated challenges, contrary to arguments employed to justify these settlements. These results support the further conclusion that pay-for-delay settlements are properly condemned as unreasonable restraints of trade. This analysis illustrates two mechanisms by which an industry-specific regulatory regime shapes the scope of antitrust liability: by creating (or limiting) opportunities for anticompetitive conduct as a practical economic matter, and by guiding as a legal matter the vigor of antitrust enforcement in addressing that conduct.
Antitrust Law And Intellectual Property Rights
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Author : Christopher R. Leslie
language : en
Publisher:
Release Date : 2011
Antitrust Law And Intellectual Property Rights written by Christopher R. Leslie and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011 with Law categories.
In Antitrust Law and Intellectual Property Rights: Cases and Materials, Christopher R. Leslie describes how patents, copyrights, and trademarks confer exclusionary rights on their owners, and how firms sometimes exercise this exclusionary power in ways that exceed the legitimate bounds of their intellectual property rights. Leslie explains that while substantive intellectual property law defines the scope of the exclusionary rights, antitrust law often provides the most important consequences when owners of intellectual property misuse their rights in a way that harms consumers or illegitimately excludes competitors. Antitrust law defines the limits of what intellectual property owners can do with their IP rights. In this book, Leslie explores what conduct firms can and cannot engage in while acquiring and exploiting their intellectual property rights, and surveys those aspects of antitrust law that are necessary for both antitrust practitioners and intellectual property attorneys to understand. This book is ideal for an advanced antitrust course in a JD program. In addition to building on basic antitrust concepts, it fills in a gap that is often missing in basic antitrust courses yet critical for an intellectual property lawyer: the intersection of intellectual property and antitrust law. The relationship between intellectual property and antitrust is particularly valuable as an increasing number of law schools offer specializations and LLMs in intellectual property. This book also provides meaningful material for both undergraduate and graduate business schools programs because it explains how antitrust law limits the marshalling of intellectual property rights.
Antitrust Limits To Patent Settlements
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Author : Carl Shapiro
language : en
Publisher:
Release Date : 2013
Antitrust Limits To Patent Settlements written by Carl Shapiro and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with categories.
Patents, patent litigation, and patent settlements increasingly influence competition. Settlements of patent disputes come in many forms, including licensing and cross-licensing agreements, patent pools, mergers, and joint ventures. While frequently procompetitive, such settlements can stifle competition and harm consumers. I propose a specific antitrust rule limiting such settlements: a settlement must leave consumers at least as well off as they would have been from ongoing patent litigation. After establishing that profitable settlements satisfying this constraint generally exist, I show how this antitrust rule can be used to evaluate three types of settlements: mergers, patent pools, and negotiated entry dates.
Antitrust And Patent Law Analysis Of Pharmaceutical Reverse Payment Settlements
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Author : Herbert Hovenkamp
language : en
Publisher:
Release Date : 2013
Antitrust And Patent Law Analysis Of Pharmaceutical Reverse Payment Settlements written by Herbert Hovenkamp and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with categories.
Patent settlements in which the patentee pays the alleged infringer to stay out of the market are largely a consequence of the Hatch-Waxman Act, which was designed to facilitate the entry of generic drugs by providing the first generic producer to challenge a pioneer drug patent with a 180 day period of exclusivity. This period can be extended by a settlement even if the generic is not producing, and in any event all subsequent generic firms are denied the 180 day exclusivity period, significantly reducing their incentive to enter. The Circuit Courts of Appeal are split three ways over such settlements. The Sixth Circuit has declared them unlawful per se. The Second and Federal Circuits conclude they are legal, provided that the patent lawsuit was not a “sham” and the settlement does not reach beyond the scope of the patent. The Eleventh Circuit would apply a rule of reason. The FTC has consistently opposed these agreements as unlawful under FTC Act §5. The Antitrust Division has recently changed its position and now regards them as presumptively unlawful. Reaching a reverse payment settlement is typically far more lucrative for a generic than defeating the patent in litigation. This fact substantially undermines the generic's incentives to litigate infringement to a conclusion and makes it essential that post-settlement challenges be pursued by someone other than the generic firm. Both the rules of virtual per se illegality and legality generally attempt to resolve antitrust challenges to these agreements without inquiring into patent validity or infringement. Rules of presumptive illegality rest on the premise that a very high payment itself is a strong indicator of patent invalidity. By contrast, antitrust's rule of reason typically requires inquiry into validity and infringement. If the patent is valid and infringed, then even a large payment for the full remaining life of the patent represents a wealth transfer but causes consumer harm only if the payment increases the pioneer's costs and thus may increase its drug price. At the other extreme, a patent that is invalid or not infringed should invite immediate generic entry, and the delay imposed by the reverse payment settlement represents competitive harm equivalent to that of any naked market division agreement. However, the costs attending a rule of reason inquiry makes it appropriate to consider alternatives that might be available within patent law, which this essay explores.
Patent Settlements In Europe And The Lundbeck Case
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Author : Jonas Frank
language : en
Publisher:
Release Date : 2017
Patent Settlements In Europe And The Lundbeck Case written by Jonas Frank and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017 with categories.
The paper studies the Lundbeck patent settlement antitrust case of the European Commission from an economic perspective. The Commission concludes that the agreements in Lundbeck involving reverse payments from the originator to generics have violated competition law. The paper shows that this decision is the correct one. More broadly the paper analyzes problem areas of patent settlement assessment in Europe. It assesses what we can learn from the U.S. patent settlement debate with particular focus on the differences in regulatory frameworks of the pharmaceutical sector which are relevant for patent settlement assessment. The recommendation is presented that, instead of taking into account the wide range of factors and effects which are important for the correct assessment of these agreements, we should rather aim at a more pragmatic approach. The paper suggests that a presumption of the illegality of reverse payments in patent settlements and a safe harbor rule for agreements without reverse payments can be a feasible approach.