the Federal Trade Commission Act.[1] In addition, sham litigation to enforce intellectual property rights may also constitute an element of a violation of the Sherman Act.[2]
- ↑ See Am. Cyanamid Co., 72 F.T.C. at 684.
- ↑ See Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-63 (1993) (“First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits …. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals ‘an attempt to interfere directly with the business relationships of a competitor’ ….” (quoting E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961))); see also id. at 58 (recognizing that “‘a pattern of baseless, repetitive claims’” may result in an antitrust violation (quoting Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972))); Handgards, Inc. v. Ethicon, Inc., 743 F.2d 1282, 1289 (9th Cir. 1984) (patents); Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 992-96 (9th Cir. 1979) (patents); CVD, Inc. v. Raytheon Co., 769 F.2d 842, 850-51 (1st Cir. 1985) (trade secrets). The enforcement of invalid intellectual property rights discussed in this section is distinguishable from licensing agreements where royalties are to be paid after the term of a valid patent right expires. The latter agreements may have “demonstrable efficiencies” that can be taken into account in an effects-based analysis. 2007 Antitrust-IP Report, supra note 13, at 122; see also Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2408 (2015) (explaining that patent law bars “royalties for using an invention after it has moved into the public domain” but distinguishing “defer[red] payments for pre-expiration use of a patent into the post-expiration period”).
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