Answer ... Section 2 of the Sherman Act makes it an offence to “monopolize, or attempt to monopolize or combine or conspire with any other person or person, to monopolize any part of the trade or commerce among the several States” (15 USC § 2). To establish an antitrust violation, a plaintiff must prove “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly” (Spectrum Sports, Inc v McQuillan, 506 US 447, 456 (1993)). Antitrust issues can sometimes arise in a patent context.
For example, if a patentee with market power changes the design of a product covered by an issued patent for predatory anti-competitive reasons, the patentee may be subjected to antitrust liability (CR Bard, Inc v M3 Sys, Inc, 157 F.3d 1340 (Fed Cir 1998)). Joining patent pools may also lead to antitrust liability if it is done to further an anti-competitive scheme (ABS Global, Inc v Inguran, LLC, 2016 WL 3963246 (WD Wis 21 July 2016). It is also possible for a patentee’s refusal to sell or license its patent to raise antitrust scrutiny.
Patent owners should also be conscious of antitrust laws when settling patent disputes. For example, a settlement may raise antitrust issues if it provides relief beyond that afforded by the patent laws. This issue sometimes appears in cases involving pharmaceutical patents where one party agrees to delay entry of its product into the market for a specific time (FTC v Actavis, Inc, 570 US 136 (2013)).
Co-authors: Anthony Berlenbach, Collette Corser, Benjamin Hemmelgarn, Matthew Hlinka, Clara Jimenez, Samhitha Medatia, Jeffrey Smyth, and Christina Ji-Hye Yang.