Antitrust claims are difficult to maintain in patent cases. But with the growth of large portfolios—especially through acquisition—the legal landscape could be changing. What do practitioners need to know?

 

More on Samantha Jameson and Aaron Nathan.

 

SPEAKERS

Aaron Nathan, Wayne Stacy, Samantha Jameson

 

Wayne Stacy  00:01

Welcome, everyone to the Berkeley Center for Law and Technology's expert series podcast. I'm your host, Wayne Stacey, the executive director of BCLT. And today our topic is the resurgent interest in the intersection of patents and antitrust. We have two leading experts with us today from the tensegrity law firm, Samantha Jameson, and Aaron Nathan, welcome both of you.

 

Samantha Jameson  00:26

Thank you.

 

Aaron Nathan  00:27

Thank you for having us.

 

Wayne Stacy  00:29

So, you know, I've spent my life doing doing patent litigation. And when it came to the the intersection of patents and antitrust, it was always interesting. But it only seemed relevant to a few select people and in just a few select occasions. It seems to be changing now. So what's happening that's making this an important topic today?

 

Aaron Nathan  00:51

That's a great question Wayne. So, from our perspective, the intersection of patents and antitrust really holds a number of pitfalls and opportunities for practitioners and market participants alike. If you're defending against allegations of patent infringement, it's worth having litigation counsel, who are well enough versed in these issues, to know whether they apply in your case and to use them to your advantage if they do. If you're asserting patent infringement, we're representing a party who is, it's equally important to understand the antitrust issues that can arise so that you can avoid these pitfalls, hopefully avoid seeing those kinds of claims asserted against your client, and so that you know how to deal with them if they are asserted. Now, as you alluded to, this is not the most common thing in patent infringement setting. It's non standard. But it does arise repeatedly throughout the years. And it has arisen a number of times in recent years. And in an antitrust climate that is relatively pro enforcement, it becomes especially important to understand the different ways in which antitrust claims can arise in the context of patent infringement litigation. It's an area that sometimes gets overlooked, but practitioners in both fields should know enough about the other field and how the two fields intersect to recognize and address these issues when they come up.

 

Wayne Stacy  02:09

Well, it's interesting, you mentioned that there may be a shift toward pro enforcement, which is why people need to know about this today. So what are the ways that patent litigation can become part of an antitrust claim?

 

Samantha Jameson  02:23

There are actually a number of different ways an alleged antitrust violation can arise in the context of patent litigation. Without giving an exhaustive list we can say it's a complicated topic, largely because the First Amendment generally protects government petitioning activity, including patent prosecution and patent lawsuits. There are a number of relatively well known areas where antitrust claims can arise. You can have claims based on this conduct and the prosecution of later asserted patents and claims based on sham assertions of infringement. In those cases, the normal f