Document Type
Article
Abstract
Patent law and antitrust law both implement competition policy. Patent law encourages publicly disclosing inventions for rights to exclude others from making, using, and selling the patented inventions. Antitrust law regulates competition so that firms do not distort markets for their own gain.
In some instances, patent law and antitrust law may conflict. For instance, patent law lets a patent owner keep a continuation patent under examination after the original parent patent has issued. Rambus exacted royalties for continuations unknown to a standard organization which has adopted a standard infringing upon Rambus’ patents. The District of Columbia Circuit rejected an antitrust monopolization claim against Rambus.
This Article looks into possible illegal antitrust tying of a patent to its continuation. To that end, it reviews basic patent structure and interrelationships between a patent and its continuations. The Article then reviews and rejects the standard real property analogy for patents in favor of a new one modeling patent claims as gates to land. It then reviews tying doctrine. Finally, it determines whether a patent and its continuation should be deemed an illegal antitrust tying arrangement. Applying the modern tying tests and guiding precepts, the gate model suggests a patent and its continuation should not be deemed an illegal tying arrangement.
Recommended Citation
Mark R. Carter,
A Patent and Its Continuation as an Antitrust Tying Arrangement,
18 J. Tech. L. & Pol'y
(2013).
Available at: https://scholarship.law.ufl.edu/jtlp/vol18/iss1/2