Book Review: A Look At Antitrust Issues In Intellectual Property Law

The book Antitrust Issues in Intellectual Property Law, edited by Bradford Lyerla and authored by several lawyers, is about the intersection of IP law and antitrust law and collects case law from 2015 and 20152016??, dealing with the issue.

The book looks into procurement, acquisition, licensing and enforcement, as well as “unique antitrust issues” arising under the United States’ Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Amendments) regarding disputes between brand-name and generic drug companies, in particular the pay-for-delay settlements. It also considers antitrust issues affecting the enforcement of IP adopted by a standard-setting organisation.

Chapter two relates to parties considering mergers, acquisitions, joint ventures, or joint development agreements and whether those collaborations will limit or appear to limit competition.

Chapter three looks into licensing agreements. According to the book, if not performed appropriately, licensing IP “may be perceived as anticompetitive, which may result in increased exposure to antitrust liability.”

In chapter 5, the book details issues of the Abbreviated New Drug Application (ANDA) under the Hatch-Waxman Act. ANDAs are submitted to the US Food and Drug Administration’s Center for Drug Evaluation and Research Office of Generic Drugs, which provides for the review and approval of a generic drug.

The book cites a 2013 US Supreme Court decision regarding the legality of “reverse payment” settlement agreements, through which a patent holder pays an alleged infringer so that he/she does not compete with the patented product. The Court found that those agreements were not illegal, according to the book, but “they were susceptible to antitrust scrutiny and should be evaluated under a ‘rule of reason’ analysis.” The book focuses on decisions by Courts of Appeal on reverse payment settlement agreements.

Also in this chapter, the book looks into “Life Cycle Management” through which branded-drug manufacturers develop next generation patented versions of their products to compete with the generic versions of their earlier product when patent protection of those earlier products expire. The manner in which Life Cycle Management is done can raise antitrust liability, the authors say, in particular “if the branded-drug maker’s behaviour can be characterised as ‘product hopping’, that is, changing the product in a way that discourages or prevents generic competition from the older version of the drug.

Chapter 6 visits antitrust issues with standard essential patents, which happens when patented technology is standardised, through standards-setting organisations such as the International Telecommunication Union, and the European Telecommunications Standards Institute.

There is a dichotomy between the monopoly granted by patents and open standards that incorporate patented technology, and the authors said that courts “have been construing SSO rules designed to bridge this dichotomy with more frequency.” The book presents legal precedent at the intersection of standards, patent law, and antitrust law.

The book is published by ABA Book Publishing.