Client Services / Intellectual Property, Media & Technology / Antitrust - IP, Media & Tech

Antitrust - IP, Media & Tech

Intellectual property rights are often thought of as "legal monopolies" that are immune from antitrust considerations. The essence of a patent or copyright is the ability to prevent others from marketing the same or similar products - the antithesis of antitrust law. Yet, patent and copyright owners are not immune from allegations of antitrust violations. Increasingly, antitrust law is being used against intellectual property owners to limit their patents and copyrights, and even to obtain treble damage awards.

Antitrust issues most commonly arise in intellectual property, media & technology cases in two areas. First and foremost, antitrust concerns are raised with respect to licensing. In general, patent and copyright owners can decide whom to license to and under what terms. However, discriminatory licensing practices (such as exclusive patent cross-licensing or pooling arrangements with other companies) or tying agreements (requiring licensure of unpatented or unwanted items as a condition of a patent license) have been found to violate the antitrust laws. Courts also have refused to enforce patents and copyrights where the license unduly restricts the licensee's ability to compete with the licensor.

Second, antitrust claims can limit or prevent intellectual property owners from enforcing their rights. Attempts to enforce patents that are known to be invalid have resulted in antitrust liability. Under the doctrines of patent and copyright misuse, anticompetitive practices may prevent an intellectual property owner from enforcing his rights until, and unless, those practices are purged.

McDermott Will & Emery helps companies develop practical defensive and offensive strategies for dealing with antitrust issues in the context of intellectual property, media & technology. We assist companies by reviewing current and proposed license agreements so as to avoid potential antitrust pitfalls, such as field of use, geographical and pricing restrictions. Our lawyers also investigate and pursue antitrust claims as affirmative defenses in suits for patent or copyright infringement, or even as preemptive litigation.

Conversely, the threat of an intellectual property lawsuit also can be a potent negotiating and litigation tool. We have successfully assisted companies faced with antitrust claims by crafting counterclaims based on patent infringement.

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Intellectual Property, Media & Technology Client Services

McDermott Will & Emery

McDermott Will and Emery