Saturday, September 24, 2016

Thomas Cheng on Antitrust Treatment of No Challenge Clauses (new article)

"Antitrust Treatment of the No Challenge Clause"
Thomas Cheng
NYU Journal of Intellectual Property & Entertainment Law
2016, Vol. 5, Issue 2, pp. 437-512
Abstract: This Article examines a patent licensing practice that has hitherto escaped the attention of U.S. antitrust law: the no challenge clauses. Under these clauses, a patent licensee is prohibited from challenging the validity of the licensed patent. These clauses have so far only been examined under patent law in terms of enforceability. This oversight by antitrust law is unfortunate, as no challenge clauses can create consumer harm by protecting an otherwise invalid patent from challenges and artificially extending the exclusive period granted by the patent law. This means that consumers have to bear supra-competitive prices for longer than necessary. A number of factors are relevant to the analysis of the legality of no challenge clauses, such as market power, patent validity, and market structure at the licensee level. This Article proposes a framework based on the Rule of Reason that incorporates all of these relevant factors and structures them in a way that renders the framework easy to apply. Lastly, the Article rejects a number of justifications that have been offered to argue for the legality of these clauses across the board.  Click here to download the full article.  This article was nominated and shortlisted for the Concurrences Antitrust Writing Awards 2017 (intellectual property category).

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