Antitrust and Patent Law

Hardcover | April 16, 2016

byAlan Devlin

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Patents lie at the heart of modern competition policy. In the new economy, firms use them variously to protect their RandD, to bolster their market positions, and to exclude rivals. Antitrust enforcers thus scrutinize patentees to ensure that they do not use their intellectual-property rightsto 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 turnto 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, addressesthe 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. Indoing so, the book allows those who practice, enforce, teach, or study competition law to understand the subtleties of this fascinating subject.

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Patents lie at the heart of modern competition policy. In the new economy, firms use them variously to protect their RandD, to bolster their market positions, and to exclude rivals. Antitrust enforcers thus scrutinize patentees to ensure that they do not use their intellectual-property rightsto suppress competition. Today's antitrust l...

Alan Devlin advises Commissioner Ohlhausen on antitrust and intellectual-property matters. Previously, he was a senior associate in the San Francisco office of Latham and 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, T...

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Kobo ebook|Oct 17 2014

$100.98

Format:HardcoverDimensions:448 pages, 9.69 × 6.73 × 0.98 inPublished:April 16, 2016Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0198728972

ISBN - 13:9780198728979

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Table of Contents

Part I: Introduction and Recent Developments1. Antitrust and Patent Law1. Introduction2. Issues at the Patent-Competition Law Intersection3. Scrutinizing Patentee Conduct: An Antitrust Challenge4. A Roadmap for the Book2. Important Developments in Antitrust-Patent Law5. Actavis Rewrites US Antitrust and Patent Law6. EU Law on Reverse Payments7. The CJEU Limits Strategic Manipulation of the Patent System in AstraZeneca, But Retreats from an Effects-Based Approach8. The CJEU Reigns In By Object Analysis in Cartes Bancaires9. The Strategic Use of Standard-Essential Patents10. Antitrust Issues Surrounding Patent-Assertion EntitiesPart II: The Patent and Antitrust Laws of Europe and America3. The Patent Crisis and its Antitrust Implications11. Introduction12. The Patent Systems Economic Function13. The US Patent System14. Patent Law in Europe15. Conclusion: How the Patent Crisis Implicates Competition Policy4. How the EU and US Antitrust Regimes Differ16. Introduction7. 17. The Different Traits, Goals, and Policies of EU and US Antitrust Law18. How EU and US Competition Laws Diverge19. Firms Enjoy Less Procedural Protections in EuropePart III: Understanding the Patent-Competition Law Interface5. The Relationship between Patent and Antitrust Law20. Evolving Views of the Patent-Competition Law Intersection21. The Scope-of-the-Patent Theory Takes Hold22. Dissecting the Antitrust-IP Interface and the Scope-of-the-Patent Test23. Conclusion: Rethinking the Patent-Antitrust RelationshipPart IV: Special Issues in Technology Markets6. Market Definition, Monopoly Power, and Patented Technology24. Introduction25. Market Definition under US Law26. The Relevant Market under EU Law27. Patented Technology and Market Definition28. Market Power under US and EU Law29. When Does a Patent Lawfully Subsume Monopoly Power?7. Antitrust Issues Surrounding Open and Closed Systems30. Overview31. When Should Antitrust Open Up Closed Networks?32. US Law Requires a Firm to Open a System Only in Exceptional Cases33. EU Law Requires Dominant Firms to Open a System When Viable Competition Requires It8. The Noerr-Pennington Doctrine34. Introduction35. Noerr-Pennington Immunity Before the Supreme Court36. The Lower Courts Shape Noerr-Pennington37. Antitrust Immunity for Filing Suit in EuropePart V: Patent Hold-Up and Misuse9. Manipulation of the Standard-Setting Process38. Introduction39. Standard-Setting Hold-Up40. US Antitrust Limits on SEPs41. Antitrust Limits on SEP Assertion in the European Union42. Conclusion10. Targeted Patent Aggregation43. Introduction44. Anticompetitive Patent Acquisitions by Operating Companies45. Patent Aggregation by Patent-Assertion Entities46. Patent Acquisitions under EU Competition Law11. Patent Misuse47. Introduction48. The Rules of Patent Misuse49. ConclusionPart VI: Agreements Concerning Patented Technology12. Technology Transfer50. Introduction51. US Antitrust Rules on Patent Licensing52. Technology Transfer under EU Competition Law13. Exclusionary Agreements in the Biopharmaceutical Industry53. The Economic Effects of Reverse-Exclusionary Payments54. Pay-for-Delay Agreements under US Law55. Reverse-Exclusionary Agreements under EU LawConclusion14. Closing Thoughts