Antitrust Issues in Intellectual Property Law, Bradford P. LYERLA

Bradford P. Lyerla

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Bradford P. Lyerla has surrounded himself with four colleagues to carry out his editorial project set out in Chapter 1: a practitioners’ book exposing the interactions between antitrust law and intellectual property law, without claiming to be exhaustive, in a snapshot of the state of case law on the most sensitive issues. The editions should follow one another every two years, as the issues are constantly changing.

The book begins by calling for vigilance in M&A transactions after the FTC and DOJ announce their intention to focus their efforts on the anticompetitive risks that accompany them. Chapter 2 invites parties to consider the impact on intellectual property (IP) portfolios in markets as diverse as goods markets, technology markets, and innovation markets. The risk of ’monopolisation’ within the meaning of the Sherman Act is demonstrated by the direct or indirect acquisition of patents. This is particularly the case with the risk of barriers to entry through refusal to grant licences, exclusivity imposed in their granting, or even tying. Case law abounds on these hypotheses.

Chapter 3 deals with the borderline between pro-competitive and anti-competitive licensing through the examination of more than fifteen types of clauses that may result in restrictions of competition. They influence basic prices, output, allocation of fields of use, exclusivity, royalty structures, grandfathering obligations, tying and cross-licensing. In addition, there are concerns about forms of forced reciprocity and misuse of intellectual property rights. Procedural issues are then covered in the next chapter through major cases in US courts. A long and dense chapter 5 is devoted to the pharmaceutical sector with the intersection of antitrust and Abbreviated New Drug Application. The context is that of the rule of reason, since a decision of the Supreme Court in 2013 (FTC v. Actavis, 133 S. Ct. 2223), which favours the assessment of "reverse payments" in return for delayed generic market entry. The final chapter discusses essential patents and the practice of standards organizations in requiring FRAND commitments from their holders. An overview of the litigation is provided by distinguishing, on the one hand, private actions beyond those between Microsoft and Motorola or Apple and Samsung and, on the other hand, public actions by the DOJ and the FTC to which are added the actions of foreign authorities such as the European Commission, the London High Court and the Mannheim Court.

European practitioners will be particularly interested in Chapters 3 and 7, whose developments are easier to transpose into the assessments of our competition authorities.

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  • University of Paris I Panthéon-Sorbonne


Catherine Prieto, Antitrust Issues in Intellectual Property Law, Bradford P. LYERLA, November 2017, Concurrences N° 4-2017, Art. N° 85113, p. 225

Publisher American Bar Association Book Publishing

Date 1 July 2016

Number of pages 332

ISBN 978-163425-445-8

Visites 215

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