Few areas in the law present thornier issues than the intersection between antitrust and intellectual property. Intellectual property (IP) rights are, by their nature, exclusionary. Where the legitimate exercise of those rights ends and anticompetitive conduct begins is frequently both difficult to define and incredibly consequential. Congress, government agencies, standard-setting organizations and courts have all struggled to strike the right balance between promoting innovation through IP rights and protecting competition from the inappropriate exercise of those rights. In the meantime, businesses must confront these issues on a regular basis as they contemplate licensing and other issues.
Akin Gump Strauss Hauer & Feld LLP’s lawyers help clients navigate the IP/antitrust interface. We advise clients regarding antitrust issues related to mergers involving potential transfers of significant IP rights and other transactions involving IP. We also represent clients in private antitrust litigation and government investigations and enforcement actions in which a party’s conduct relating to IP is at issue. Our antitrust lawyers often work closely with our IP lawyers, including in cases in which an IP claim provokes an antitrust counterclaim. Further, we are very familiar with the Hatch-Waxman Act and the myriad antitrust issues that have arisen under that legislation.
Representative Antitrust IP Matters
- successfully petitioned, on behalf of four major refiners, the FTC to bring an antitrust case challenging a patent holder’s deception in a standard-setting process to gain monopoly power over the California reformulated gasoline market, then represented the refiners in a resulting administrative trial that culminated in a consent order prohibiting enforcement of relevant patents.
- defending a large pharmaceutical company in a class action antitrust lawsuit in which the plaintiffs attacked four “reverse payments” patent litigation settlements, accusing the defendants of antitrust conspiracy and monopolization claims
- defending a large medical products company in a lengthy FTC investigation of a consummated acquisition of patents and patent rights that resolved a patent infringement action by client
- represented the creditors’ committee of a bankrupt large telecom company in evaluating and advising on the antitrust risks of selling a multibillion-dollar patent portfolio to a range of potential buyers.