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Scholarship Abstract When Michael Heller proposed that excessively fragmented property rights in land can frustrate its commercial development, patent scholars began debating whether Heller’s anticommons theory . . .
When Michael Heller proposed that excessively fragmented property rights in land can frustrate its commercial development, patent scholars began debating whether Heller’s anticommons theory applies to property rights in inventions. Do “patent thickets” exist? The rise and fall of the first American patent thicket — the Sewing Machine War of the 1850s — confirms that patent thickets do exist and that they can frustrate commercial development of new products. But this historical patent thicket also challenges the widely held assumption that this is a modern problem arising from allegedly new issues in the patent system, such as incremental high-tech innovation and the impact of “patent trolls.” The Sewing Machine War exhibited all of these phenomena, proving that these are hoary issues in patent law. The denouement of this patent thicket in the Sewing Machine Combination of 1856, the first privately formed patent pool, further challenges the conventional wisdom that patent thickets are best solved through public-ordering regimes that limit property rights in patents. The invention and incredible commercial success of the sewing machine is a striking account of early American technological, commercial, and legal ingenuity, which heralds important empirical lessons for how patent thicket theory is understood and applied today.
TOTM As TOTM readers are likely to know, the Supreme Court denied certiorari in Rambus, a course of action I had argued was the appropriate response . . .
As TOTM readers are likely to know, the Supreme Court denied certiorari in Rambus, a course of action I had argued was the appropriate response to the arguments set forth in the Commission petition. I recently expanded the blog post into a short essay which I’ve posted on SSRN. It will also be available in a few weeks at Global Competition Policy.
Read the full piece here.
TOTM As noted, the FTC has exercised its right under 15 USC 56(a)(3) to petition for a writ of certiorari to review the judgment of the . . .
As noted, the FTC has exercised its right under 15 USC 56(a)(3) to petition for a writ of certiorari to review the judgment of the D.C. Circuit in its FTC v. Rambus. The FTC press release is here. The petition is here. The questions presented, as framed by the Commission are…
TOTM The Federal Circuit came down on the side of rule of reason analysis, and no liability, in a reverse payment case in Cipro (HT: Antitrust . . .
The Federal Circuit came down on the side of rule of reason analysis, and no liability, in a reverse payment case in Cipro (HT: Antitrust Review and Patently-O)…
TOTM Global Competition Policy has a trio of interesting articles on the DOJ Section 2 Report, and FTC response, which I’ve blogged about here and here . . .
Global Competition Policy has a trio of interesting articles on the DOJ Section 2 Report, and FTC response, which I’ve blogged about here and here from Tim Brennan, William Kolasky and Mark Popofsky. The abstract from Popofsky’s article gives a sense of the scope and importance of the issues here…
Scholarship Abstract The Supreme Court’s unanimous decision in Quanta v. LG Electronics may make it significantly more difficult to structure transactions involving patents. While this decision . . .
The Supreme Court’s unanimous decision in Quanta v. LG Electronics may make it significantly more difficult to structure transactions involving patents. While this decision does make a group of players into winners in the immediate term for existing patent deals (this group includes any customer who, like Quanta, buys patented parts without buying a patent license), almost everyone is likely to come out a loser going forward.
The Court in Quanta decided that a patent license that LG Electronics sold only to Intel – and explicitly limited to exclude Intel’s customers, like Quanta, and priced to reflect these modest ambitions – would be treated by the Court as extending permission under the patent to those Intel customers. The legal “hook” on which the Court hung its decision is the patent law doctrine called “first sale” or “exhaustion.”
The Quanta decision is likely to have a serious negative effect on the nuts and bolts of patent licensing agreements. On one reading, it stands for little more than the unremarkable proposition that the actual patent license contract at issue was just badly written. But that would be a simple matter of applying state contract law to the underlying facts of the contract – not the type of issue that typically gains the Supreme Court’s attention. So the real motivating force behind the Court’s decision to take the case is probably something else. The extensive briefing and commentary, as well as the opinion’s colorful dicta, all suggest that the true import of the case is the way it speaks about what patent contracting can be done – as a matter of Court-created policy for federal patent law.
If this view of Quanta is correct, then the decision may be remarkably important in several respects. It may greatly frustrate the ability of commercial parties to strike deals over patents. It may also stand as an example of a seemingly conservative Court acting in direct contravention of clear congressional action.
TOTM The public comment period has closed and the N-Data settlement has been approved by a vote of 3-1 with Chairman Kovacic voting against (his earlier . . .
The public comment period has closed and the N-Data settlement has been approved by a vote of 3-1 with Chairman Kovacic voting against (his earlier dissent is here). I think is a sleeper candidate for one of the most important antitrust events of the year as it potentially signals a remarkable expansion of the Commission’s Section 5 Act. You can read the public comments on N-Data here.
TOTM The FTC announced a complaint today challenging Fresenius Medical Care AG & Co.’s proposed acquisition of an exclusive sublicense from Luitpold Pharmaceuticals, who is in . . .
The FTC announced a complaint today challenging Fresenius Medical Care AG & Co.’s proposed acquisition of an exclusive sublicense from Luitpold Pharmaceuticals, who is in turn a wholly owned subsidiary of a Japanese firm Daiichi Sankyo Company. The sublicense would allow Fresenius to manufacturer and supply the intravenous iron drug Venofer to dialysis clinics in the US.
TOTM There’s been a bit of discussion about the “most destructive” decision that is good law around the blogs, e.g. here and here, in response to . . .
There’s been a bit of discussion about the “most destructive” decision that is good law around the blogs, e.g. here and here, in response to John McCain’s criticism of Boumedine calling it “one of the worst decisions in the history of this country.” The line of discussion led me to think about the titular question. Antitrust law has the fairly odd feature that lower court decisions are overturned at a fairly low rate. There are a handful of SCOTUS reversals of old, “bad” precedent, e.g. Leegin overturned Dr. Miles, State Oil overturned Albrecht, Independent Ink overturned the rule that a patent holder was presumed to have market power in tying cases (my analysis here). In fact, prior to Leegin, the SCOTUS had been routinely reversing some bad prior precedent with little discussion (compare the reaction to Leegin to the unanimous State Oil decision on Max RPM in 1997 in which there was zero talk of stare decisis!).
