June 17, 2013
Reverse payment deals to effectively extend patent protection for drug makers has been approved by the courts. But the FDA took a dim view in one instance, finding antitrust implications. For that it got slapped down by the district and appeals courts, for lack of jurisdiction. But the Supreme Court (12-416), in the interest of "public policy," was wont to let the government do its job as it saw fit. Never one for bright-line rules, reverse payments are generally okay, unless a Federal regulator decides otherwise.
Posted by Patent Hawk at 2:27 PM | Antitrust
August 30, 2010
Compact discs (CDs) became commercially viable by creating an international standard, insipidly called the "Orange Book." Philips was instrumental in developing the Orange Book standard, as well as holding patents covering a portion of the standard. CD maker Princo licensed Philips' CD patent portfolio, then peeved itself, that it was forced to license irrelevant patents as part of the deal. So Princo stopped paying licensing fees, and got hauled before the ITC for its failure to pay the rent. The ITC found patent misuse, which the CAFC reversed and remanded. The ITC took the hint, and turned a deaf ear to Princo's patent misuse defense. Princo appealed. A CAFC divided panel then ruled in confusion, again remanding. All involved filed petitions for an en banc rehearing. So here we are.
Posted by Patent Hawk at 5:20 PM | Antitrust
April 21, 2009
Peeing on the Pool
Four companies pooled patents covering the industry standard for music and data CDs. The standard, set in the early 1990s, was codified in the "Orange Book." The Orange Book standard created compatibility for CD readers and writers, thus creating a single market. Consumers could buy CDs, knowing that they would work with any player, because of the Orange Book standard. If you want to manufacture a CD writer, you have to first pop to the one-stop shop for a patent pool license.
December 6, 2008
In the Pool
Stanford University academics Ryan Lampe and Petra Moser, in "Do Patent Pools Encourage Innovation?":
Regulators favor patent pools to encourage innovation in industries where overlapping patents and excessive litigation suppress innovation. With patent pools, member firms share patents freely with each other and offer one-stop licenses to outside firms. Thus patent pools are expected to promote innovation by reducing litigation risks for pool members and lowering transaction costs for outside firms. Our data confirm that pools reduce litigation risks for members and that pool members patent more in the years leading up to the pool. Pool members, however, patent less as soon as the pool is established and only resume patenting after the pool dissolves. Performance data suggest that innovation slowed as soon as the pool had been established and resumed only after the pool had been dissolved.
October 15, 2008
"A patent by its very nature is anticompetitive." So the CAFC remarked in affirming summary judgment punting of an antitrust case based upon patent protection, and a kickback ("reverse payment") settlement agreement between patentee Bayer and generic makers, over Cipro®, covered by 4,670,444.
Posted by Patent Hawk at 11:42 PM | Antitrust
March 31, 2008
The American Antitrust Institute (aai) is a lobbyist corporation backed by undisclosed lucre, doubtlessly large corporations. Their spiritual mentor is Teddy Roosevelt: rough rider, trust buster, who once observed: "Every reform movement has a lunatic fringe."
Posted by Patent Hawk at 1:40 AM | Antitrust
September 30, 2006
Monsanto makes Roundup, a broad-spectrum herbicide. Monsanto's patent on Roundup expired in September 2000, but it still exercises monopolistic control of the market through tying arrangements with its still-patented Roundup-resistant seeds: buy the seeds, and you must buy Roundup. Spray the cropland growing the resistant seeds, killing the weeds, but the crop is unscathed. The whole scheme is now under attack on two fronts: anti-trust and patent validity.
Posted by Patent Hawk at 2:43 PM | Antitrust
August 16, 2006
The Scruggs brothers planted, without license, Monsanto genetically modified, herbicide resistant, soybeans and cotton. Monsanto asserted 5,352,605; 5,196,525; and 5,322,938 against them. Ornery, the Scruggs went down fighting, in trial and on appeal (CAFC 04-1532).
Posted by Patent Hawk at 12:24 PM | Antitrust
March 27, 2006
Phillips offers its pool of patents covering manufacturing compact discs (CDs) to licensees. Princo was one, starting in 1997, until it stopped paying the license fees. So Phillips sued.
Posted by Patent Hawk at 9:34 AM | Antitrust
March 1, 2006
In a nod to economic reality, and catching up with perceived Congressional intent, in Illinois Tool Works v. Independent Ink, the Supreme Court (04-1329) ruled that a patent does not necessarily confer market power.
Posted by Patent Hawk at 11:07 AM | Antitrust
September 23, 2005
As a grant of monopoly power, patents have long been legally associated with antitrust. Using patents in an anticompetitive manner is patent misuse, and provides a defense to infringers. But is a patent pool, which may combine patents of related technology under a single license, ipso facto anticompetitive? In the case of Phillips v. The International Trade Commission, the CAFC (04-1361) didn't think so.
Posted by Patent Hawk at 1:15 PM | Antitrust