The Patent-Antitrust Interface: Are There Any No-No's Today?

Antitrust law and patent law are legal tectonic plates - always in motion, occasionally converging, occasionally diverging, and occasionally moving in parallel relation. As patent suits have recently multiplied, the antitrust enforcement policies have again responded - for example, imposing pro-competition rules on patent case settlements, on abuses in standard setting situations, and on practices used to obtain patents in the first instance. When the two disciplines' plates converge, we see the direct clash of the constitutional grant of a patent monopoly confronting the statutory edict against monopoly. When the plates diverge, we see that antitrust law has no bearing on many of the important patent doctrines of obviousness, anticipation, best mode, claims construction and the like. And when the doctrines transform - moving sideways in relation to each other - we see often compatible principles in royalty calculation, innovation promotion, and licensing practices. The Supreme Court could say in 1902 that the "general rule" was the "absolute freedom in the use or sale of rights under the patent laws... The very object of these laws is monopoly." E. Bennett & Sons v. National Harrow Co., 186 U.S. 70 (1902). But 60 years later, antitrust law treated intellectual property rights more skeptically, leading to perhaps the zenith of antitrust's dominance in 1970. We will use that latter era as our discussion jump-off point, referencing a set of doctrines issued at the time when the antitrust tectonic plate was dominant, when patents and patent licensing practices - mostly of a vertical nature - were viewed with anti-competitive suspicion. It was the era of the "Nine No-Nos," articulated by the Antitrust Division in 1970. Over time, these per se illegal prohibitions succumbed to the free market thinking of antitrust enforcers in the Reagan and Bush administrations. Yet just when patent law appeared to be on a long run of domination, we are now again witnessing a renewed pushback against patents - a pushback led by the Supreme Court rulings, by defendants in suits brought by non-practicing entities, and by the Federal Trade Commission. Could a Reagan era antitrust enforcer ever have imagined that today's FTC would hold hearings on whether the assertion of weak patents in...