Abstract

http://ssrn.com/abstract=2333291
 


 



Ending Patent Exceptionalism & Structuring the Rule of Reason: The Supreme Court Opens the Door for Both


Robin Feldman


University of California Hastings College of the Law

September 29, 2013

Minnesota Journal of Law, Science & Technology, Forthcoming
UC Hastings Research Paper No. 70

Abstract:     
A patent gives one an opportunity to exploit an idea. It is not intended as a universal pass for exploiting the legal system. Nevertheless, a notion I would call patent exceptionalism has been allowing patent holders to exercise free rein. It is a dangerous approach that fails to distinguish between deploying the right and deploying the system. This article describes patent exceptionalism and explains how the Supreme Court decision in FTC v. Actavis moves away from it.

The article also explains how the appeal of patent exceptionalism intertwines with antitrust. To put it bluntly, patent exceptionalism is alluring because it makes life so simple. Moving away from patent exceptionalism means worrying about the messy question of what is acceptable patent behavior for antitrust purposes, a question generally analyzed under the burdensome rule of reason. Once again, the Supreme Court in Actavis opens a door, although one could argue that the door was opened merely a crack. By suggesting that the lower courts “structure” antitrust litigation, the Court provides an opportunity to give form to the amorphous rule of reason, an apparition that has repelled the hardiest of antitrust warriors. This article discusses how a structured rule of reason can be developed.

The patent system is not a deity to which we must respectfully defer. It is a living, breathing part of the organism that is our legal system. If we continue to treat patents with exceptionalism, we have only ourselves to blame as we walk willingly into the volcano.

Number of Pages in PDF File: 19

Keywords: reverse payments, patents, Hatch-Waxman, pay-for-delay, pharmaceutical, generic, patent trolls

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Date posted: September 30, 2013 ; Last revised: October 28, 2013

Suggested Citation

Feldman, Robin, Ending Patent Exceptionalism & Structuring the Rule of Reason: The Supreme Court Opens the Door for Both (September 29, 2013). Minnesota Journal of Law, Science & Technology, Forthcoming; UC Hastings Research Paper No. 70. Available at SSRN: http://ssrn.com/abstract=2333291

Contact Information

Robin Feldman (Contact Author)
University of California Hastings College of the Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States

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