Willkie Practitioner Handbook Series
The Intersection of Antitrust and Intellectual Property is a practitioner’s guide to the high-stakes disputes that arise when patent rights and antitrust enforcement collide.
Intellectual property law grants limited monopolies to incentivize innovation; antitrust law prohibits monopolization to protect competition. Where these doctrines intersect, practitioners face some of the most complex and consequential litigation in commercial law. This Handbook examines three critical battlegrounds where IP and antitrust law converge.
Walker Process Fraud and Patent Enforcement. Enforcing a patent obtained through fraud on the USPTO can give rise to antitrust liability. The Handbook provides comprehensive coverage of Walker Process claims, including jurisdictional and choice-of-law issues, the Federal Circuit's Nobelpharma framework, monopolization and attempted monopolization under Sherman Act Section 2, antitrust standing requirements, the sham litigation exception, damages calculations, and the theoretical basis for criminal prosecution.
Pharmaceutical Patent Antitrust Litigation. The Handbook analyzes reverse payment settlements (“pay-for-delay” agreements) under the Hatch-Waxman Act, the Supreme Court's Actavis decision and its rule-of-reason standard, and the evolving circuit-level case law on what constitutes a “large and unjustified” payment. It also addresses product hopping strategies—and the current circuit split on when brand-drug reformulations trigger antitrust claims—as well as patent thicket theories and the skepticism courts have expressed toward aggregation-based antitrust challenges.
Standard Essential Patents (SEPs) and FRAND Licensing. The Handbook examines antitrust issues arising from SEPs and FRAND commitments, including shifting U.S. government policy across administrations, refusal-to-deal claims against patent holders, and the escalating jurisdictional complexity of global SEP disputes—covering anti-suit injunctions and the international chain of counter-injunctions that now characterizes cross-border SEP litigation.
