Overview

The intersection of antitrust law and intellectual property has become increasingly more complicated and important at the same time. Advanced technology, innovation, “Moore’s law” and the Internet are all causing revolutionary changes throughout the economy. Protecting, preserving and asserting intellectual property rights—or competing effectively in light of a competitor’s IP—are critical for many businesses.

Antitrust and IP, however, are often at odds. IP can create or protect market positions while antitrust law is often hostile to the exercise of market power. Increasingly enforcement agencies and private plaintiffs have alleged that some IP arrangements restrain competition in violation of the antitrust laws. The FTC and Antitrust Division have specially targeted intellectual property licenses by pharmaceutical companies as a subject of enhanced scrutiny under the Hart-Scott-Rodino Act. We have had significant experience in intellectual property licensing and standard setting, particularly in questions arising by reason of antitrust laws that have application to the licensing of intellectual property rights. We also litigate and counsel clients regarding patent misuse, bad faith intellectual property enforcement, the acquisition and/or licensing of patents and other intellectual property and the competitive implications of settling intellectual property disputes.

Experience

Listed below are representative antitrust matters in which our partners have participated.

  • Representing IP holder in FTC industry-wide Section 6(b) study of patent assertion entities and non-practicing patent holders.
  • Representing a client in a post-merger FTC investigation of an alleged non-Hatch-Waxman "reverse payment" case involving FTC scrutiny of the client's patent portfolio.
  • Representation of international manufacturer in lawsuit accusing client of trade secret theft by means of inevitable disclosure from hiring of plaintiff's engineers; antitrust counterclaims asserted.
  • Defended medical device manufacturer in FTC potential monopolization investigation related to IP holdings and acquisition strategy.
  • Obtained orders upholding the validity and enforceability of various patents and defended against Walker Process and monopolization and attempt to monopolize claims for litigation in the packaging industry.
  • Represented pharmaceutical manufacturer in Hatch-Waxman reverse-payments litigation.
  • Representing a pharmaceutical manufacturer of authorized generic drug products in an FTC investigation of the intersection of antitrust in IP rights in the pharmaceutical industry.
  • Won jury verdict and monetary damages for media licensing company in copyright infringement litigation involving Internet infringement.
  • Won dismissal of trademark infringement claims in multi-million dollar intellectual property litigation.
  • Counseled IP holders in enforcement and assertion of rights consistent with antitrust laws.