Redefining the Border Between Intellectual Property and Antitrust: Implications of FTC v. Actavis

    View Author June 2013

    The interface of intellectual property (particularly patent) rights and antitrust has challenged legal counselors in the US since at least the early 1930s. Earlier this month, the United States Supreme Court revisited this topic, dusting off and reinterpreting its older precedents in issuing the opinion, Federal Trade Commission v. Actavis, Inc., et al., Case No. 12-416, 570 U.S. __ (June 17, 2013). The Actavis decision would be noteworthy for its intended impact alone on reverse-payment settlement agreements in the pharmaceuticals industry but has broader implications for the basic intersection of intellectual property law and antitrust. It will likely play a role in the ongoing debate over the activities of Patent Assertion Entities or patent trolls. Additionally, the majority's move away from the scope of the patent test may require revisiting of the antitrust analysis of some relatively standard patent licensing terms − that might have seemed secure from antitrust review before this decision when falling within the scope of a patent.

    This article was also published in Bloomberg BNA – Antitrust & Trade Regulation Report, July 2013.