As noticed on the Antitrust & Competition Policy Blog, Professor Hovenkamp has written a new piece entitled "The Walker Process Doctrine: Infringement Lawsuits as Antitrust Violations."
I highly recommend the paper, which is available here: Download hovenkamp_walker_process.pdf, to practitioners working on cases involving the exclusionary use of patents, as well as anyone studying the issue generally. Judges should be aware of it too. It brings some clarity to the analysis.
The issue addressed is how patents may be used in an exclusionary manner to improperly obtain or maintain monopoly power and how antitrust law can address this. In typical fasion, Hovenkamp avoids getting bogged down in formalistic distinctions and instead stays focused on the harm to competition and how it should be addressed.
For example, some defendants have argued in antitrust cases that, unless the patent allegedly used to obtain monopoly power was obtained by outright fraud on the Patent Office, antitrust law cannot provide a remedy. Hovenkamp correctly rejects this:
"[I]nfringement actions can also be qualifying exclusionary practices under [section] 2 when they are based on valid patents that are known by the infringement plaintiff to be unenforceable as a result of improprieties in procurement, or on valid patents but where the infringement plaintiff knew or should have known that the infringement defendant was not an infringer." (p4)
Others have argued that there should be no liability for wielding an improperly-obtained patent, as long as a patent infringement suit was not actually filed. Hovenkamp points out that patents can be enforced in an exclusionary manner in many ways - not just by filing a lawsuit:
"Of course, one might enforce a fraudulently obtained patent in other ways than by making or threatening infringment actions. For example, one might simply assert the patent and warn a potential rival to stay out of the market the patent assertedly covers; or one might insist on collecting a royalty for technology allegedly covered by such a patent. Clearly a patent obtained by fraud could be used in an anticompetitive way falling short of an infringement suit. Whether such practices are sufficiently exclusionary so as to violate the antitrust laws cannot be stated categorically." (p10-11)
Finally, Hovenkamp rejects the claim made by some - including in the DDAVP case discussed below - that purchasers of products who were overcharged because of exclusionary uses of patents should not have standing to bring damages claims. He notes that the DDAVP decision on this point is "odd" and "apparently incorrect." (fn 102).
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