Patent Licenses That Restrain Price: New Wrinkles and Old Doctrine

Price fixing arrangements have been held to be clear violations of the antitrust laws for many years. <i>United States v. Socony-Vacuum Oil Co.</i>, 310 U.S. 150, 223 (1940) ("Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal <i>per se</i>"). Whether a creative patent license agreement that impacts price constitutes a price fixing arrangement is, however, often less than clear. This article discusses the Supreme Court and Courts of Appeals cases that set the stage for the types of patent licensing arrangements that will be seen as price fixing, and provides an overview of the Department of Justice's take on patent licensing arrangements and how it will scrutinize such arrangements under the antitrust laws. Finally, this article reviews recent case law discussing the intersection of patent and antitrust law.

25 minute read April 01, 2005 at 09:46 AM

By

Paul A. Ragusa and K. Burns McNamee