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Published byJulie Sherman Modified over 9 years ago
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Antitrust Counterclaims: The Basics Daniel M. Wall San Francisco dan.wall@lw.com
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Walker Process Claims Enforcement of patent procured by fraud may be monopolization. “Remaining elements” of § 2 claim must also be proven. “Use,” i.e., enforcement, is required. Pre-litigation threats may suffice. Fraud must be real, not constructive. Inequitable conduct such as failure to cite prior art does not suffice.
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Other Unlawful Acquisition Claims IP Acquired Through Collusion Singer: IP plaintiff acquired and enforced patent pursuant to conspiracy. Applicable to collusive litigation settlements? Section 7 Claims Counterclaimant’s injury must result from more than IP enforcement. Kobe Acquisition, nonuse and enforcement of “every important patent” § 2 violation. Grantback Patents Rule of reason analysis, rarely unlawful.
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Bad Faith Enforcement Claims Enforcing a patent or copyright known to be invalid may be unlawful, but … PRE requires Rule 11-type baselessness Intent to injure through the process, rather than the outcome. Once “the” antitrust counterclaim, this is much less significant after PRE.
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Unlawful Licensing Claims Insert IP Guidelines here Tying Package Licensing Exclusive Dealing Resale Price Maintenance Frequently parallels misuse defenses, but often simple leverage
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Refusals to License Longstanding rule that a simple refusal to license IP is not an antitrust violation. Section 271(d) of patent law states that a refusal to license is not misuse or “illegal extension.” Kodak IP is not a defense in a Section 2 refusal to deal case if IP rights “played no part” in a refusal to license a patented or copyrighted good. Xerox (In re ISO) “In the absence of any indication of illegal tying, fraud in the PTO, or sham litigation, the patent owner may enforce the statutory right to exclude … free from liability under the antitrust laws.”
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Antitrust Counterclaims: The Basics Daniel M. Wall San Francisco dan.wall@lw.com
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