Book Note the Antitrust Counterattack in Patent Infringement Litigation

Patent infringement suit claims of inequitable conduct before the Patent Office and claims of patent misuse are staple affirmative defenses in patent practice. Defendants' frequent invocation of the inequitable conduct and patent misuse doctrines causes patentee-plaintiffs to consider the possibility that a court will find the patent unenforceable in accord with those doctrines. The authors of The Antitrust Counterattack in Patent Infringement Litigation ("The Antitrust Counterattack") offer another reason to contemplate the possible effects of a claim of fraud in patent procurement or bad-faith enforcement: the same actions that lead to a finding of inequitable conduct or patent misuse may also satisfy the requirements for a treble damages recovery under antitrust law. Courts in the Walker Process 2 and Handguards 3 cases established that enforcing a patent obtained through fraud on the Patent Office and enforcing a patent known to be invalid may both give rise to antitrust liabil~ty (p. 1). Of course, inequitable conduct and patent misuse are affirmative defenses to patent infringement suits and an antitrust counterclaim or an independent action alleging antitrust injury is a separate matter entirely (pp. 48-49). However, when an antitrust counterattack is launched the facts and law apposite to the patent infringement suit are inexorably tied to the resolution of the antitrust claim as well. The Antitrust Counterattack, published by the ABA Antitrust Law Section as a part of its Antitrust Practice Handbook Series is an excellent primer on the confluence of patent and antitrust law in antitrust counterattacks to claims of patent infringement. Chapters One and Two provide