Abstract

http://ssrn.com/abstract=1652188
 
 

Footnotes (146)



 


 



Joint Defense or Research Joint Venture? Reassessing the Patent-Challenge-Bloc's Antitrust Status


Joseph Scott Miller


University of Georgia Law School

August 2, 2010

Stanford Technology Law Review, Forthcoming
Lewis & Clark Law School Legal Studies Research Paper, 2010-27

Abstract:     
A patent challenger who defeats a patent wins spoils that it must share with the world, including all its competitors. This forced sharing undercuts an alleged infringer's incentive to stay in the fight to the finish - especially if the patent owner offers an attractive settlement. Too many settlements, and too few definitive patent challenges, are the result. I have argued previously that a litigation-stage bounty would help correct this tilt against patent challenges, for it would provide cash prizes to successful patent challengers that they alone would enjoy. Even the best-designed bounty, however, would likely fail to encourage patent validity challenges in all the cases where such encouragement would be salutary. Others have urged that, going forward, post-grant administrative review is a more promising approach to weeding out weak patents. A new post-grant review procedure, however, will do nothing to encourage worthy challenges to thousands of extant weak, overasserted patents.

This article explores another litigation-stage approach to overcoming the free rider problem that undercuts patent validity challenges - namely, strong-form joint defense agreements among multiple accused infringers. Strong-form agreements, which go beyond light coordination and information sharing, have long been condemned as unlawful buyers' cartels. The seminal case remains Jones Knitting Corp. v. Morgan. But current doctrine’s condemnation trades on a category mistake rooted in a fatally simplistic view that patents are commodity property (rather than what they are, which is probabilistic exclusion rights). Contrary to conventional wisdom, a binding commitment among accused infringers jointly to fund a full challenge to patent infringement allegations is not, nor is it akin to, a buyers’ cartel for buying commodities. Rather, it is a research joint venture, the goal of which is to generate valuable - but otherwise inappropriable - information about the patent's true validity or scope.

Number of Pages in PDF File: 38

working papers series


Download This Paper

Date posted: August 2, 2010 ; Last revised: December 29, 2013

Suggested Citation

Miller, Joseph Scott, Joint Defense or Research Joint Venture? Reassessing the Patent-Challenge-Bloc's Antitrust Status (August 2, 2010). Stanford Technology Law Review, Forthcoming; Lewis & Clark Law School Legal Studies Research Paper, 2010-27. Available at SSRN: http://ssrn.com/abstract=1652188 or http://dx.doi.org/10.2139/ssrn.1652188

Contact Information

Joseph Scott Miller (Contact Author)
University of Georgia Law School ( email )
Athens, GA 30602
United States
706-542-5191 (Phone)
706-542-5556 (Fax)

Feedback to SSRN


Paper statistics
Abstract Views: 1,568
Downloads: 106
Download Rank: 150,209
Footnotes:  146
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.312 seconds