firms for licenses to manufacture and sell Omega’s patented drug. The facts of this example indicate that Omega, or Omega’s licensee, would be a potential competitor of Delta in the absence of the licensing arrangement, and thus the firms are in a horizontal relationship in the relevant goods market that includes drugs for the treatment of this particular disease. The evaluating Agency would apply a merger analysis to this transaction, since it involves an acquisition of a potential competitor.
6 Invalid or Unenforceable Intellectual Property Rights
The Agencies may challenge the enforcement of invalid intellectual property rights as antitrust violations. Enforcement or attempted enforcement of a patent obtained by fraud on the Patent and Trademark Office may violate section 2 of the Sherman Act or section 5 of the Federal Trade Commission Act, if all the elements otherwise necessary to establish a charge are proved.[1] Inequitable conduct before the Patent and Trademark Office will not be the basis of a section 2 claim unless the conduct also involves knowing and willful fraud and the other elements of a section 2 claim are present.[2] Actual or attempted enforcement of patents obtained by inequitable conduct that falls short of fraud under some circumstances may violate section 5 of
- ↑ Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 176-77 (1965); Am. Cyanamid Co., 72 F.T.C. 623, 684-85 (1967), aff’d sub. nom. Charles Pfizer & Co. v. FTC, 401 F.2d 574 (6th Cir. 1968); see also Michael Anthony Jewelers, Inc. v. Peacock Jewelry, Inc., 795 F. Supp. 639, 647 (S.D.N.Y. 1992) (holding that the enforcement of copyrights obtained by fraud on the Copyright Office could similarly violate antitrust law).
- ↑ Argus Chem. Corp. v. Fibre Glass-Evercoat, Inc., 812 F.2d 1381, 1384-85 (Fed. Cir. 1987); see also Transweb, LLC v. 3M Innovative Props. Co., 812 F.3d 1295, 1307 (Fed. Cir. 2016) (stating that “[a]fter Therasense, the showing required for proving inequitable conduct and the showing required for proving the fraud component of Walker Process liability may be nearly identical”); Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1290-92 (Fed. Cir. 2011) (en banc) (raising the standard of proof for inequitable conduct to require “but for” materiality and specific intent to deceive except in cases of affirmative egregious conduct).
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