INTERNATIONAL : PATENT LITIGATION - ANTITRUS LITIGATION - USA PATENT INFRINGEMENT - ANTITRUST COUNTERCLAIMS - SECTION 2 SHERMAN ACT - SHAM LITIGATION - FRAUDULENT PATENT - DISCOVERY BURDEN - RELEVANT MARKET - MARKET POWER

Antitrust counterclaims in US patent infringement litigation

In view of the well-known tensions between the antitrust laws and the intellectual property laws, in any patent infringement litigation the accused infringer should always consider possible antitrust counterclaims. Such claims may include variations on monopolization under Section 2 of the Sherman Act, sham litigation, bad faith patent enforcement, and fraudulent patent procurement. But before bringing such a counterclaim a party should consider the issues of adding to the discovery burden, the potential requirement to define the relevant market and show market power, and the heightened pleading standards requiring sufficient facts to warrant a reasonable inference that the party is liable for the misconduct alleged.

1. It is well known that tensions exist between the antitrust laws and intellectual property (“IP”) laws. Courts are often confronted with “the complex interaction between two conflicting bodies of law: One, the patent law, is concerned with the creation and commercial exploitation of a statutory grant of monopoly power; the other, the antitrust law, is concerned with proscribing various kinds of monopoly power.” [1] For parties caught in litigation over alleged IP violations, the use of antitrust counterclaims is not merely an academic question of conflicting bodies of law. In creating a potential source of liability for the IP plaintiff, the “conflict” can have the real-world effect of leveling the playing field between the litigants. 2. In view of these tensions between IP and antitrust

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Noah A. Brumfield, Wendi R. Schepler, Antitrust counterclaims in US patent infringement litigation, December 2010, Concurrences N° 4-2010, Art. N° 32744, www.concurrences.com

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