Register | Login
Intellectual Property Today
RFC Express - Document Management System

Patented Redesign May Present Antitrust Risks

By Brian P. Brosnahan and Chris Martiniak of Heller Ehrman LLP

Brian Brosnahan is a Heller Ehrman LLP shareholder handling antitrust litigation and counseling along the antitrust/IP interface, including tying and monopolization issues as well as Walker Process and related liabilities.  He was named a Northern California “Super Lawyer” in Antitrust (Law & Politics Magazine 2007).

Chris Martiniak is a Heller Ehrman LLP shareholder handling large scale patent litigation.  He co-authored “California Antitrust Law and Intellectual Property,” (California State Bar ), and was named a Northern California “Super Lawyer” (Law & Politics Magazine 2006).

Although antitrust courts have long been reluctant to second guess product design decisions, a firm having substantial market power may still face antitrust exposure when its redesign of a product offers little or no improvement over the old design and the firm takes steps to exclude competitors’ products from the market, such as patenting the new design and discontinuing its products that were compatible with the old design.

Firms sued for patent infringement often counterclaim that the patent holder has monopolized or attempted to monopolize a relevant market either by 1) seeking to enforce a patent that was obtained through fraud on the PTO (a “Walker Process claim”); or 2) bringing patent litigation despite knowing either that the patent is invalid or that the defendant’s conduct does...

To view the complete article you must be logged in
Login Now

Not A Member Yet? Sign Up For A Free 10 Day Trial Account!

  © Copyright 2010 Intellectual Property Today
Download Adobe Reader for free