The Role of Consumers in Walker Process Litigation

33 Pages Posted: 12 Dec 2007 Last revised: 28 Dec 2013

See all articles by Christopher R. Leslie

Christopher R. Leslie

University of California, Irvine School of Law

Abstract

Through Walker Process claims, antitrust law condemns monopolization by means of the fraudulent procurement and enforcement of invalid patents. Walker Process litigation can serve a critical role in a competitive economy by bringing down illegal monopolies that reduce output below efficient levels. Recently, courts have split on whether consumers have standing to initiate Walker Process litigation. Surprisingly, none of the courts denying consumers standing to bring Walker Process claims has performed any extensive analysis of the purpose or structure of antitrust standing. After explaining how denying standing to consumers who attempt to bring Walker Process claims undermines the compensatory and deterrent functions of antitrust law, this symposium piece demonstrates how such consumers satisfy the traditional antitrust standing requirements. However, that does not mean that consumers should necessarily have unimpeded access to federal courts to pursue Walker Process claims. The proper standard requires balancing several competing goals; it should render patent fraud not cost-beneficial and should compensate consumers injured by illegal monopolies maintained through fraudulently procured patents, but without opening the floodgates to nuisance suits and frivolous litigation that could deter legitimate patent activity. The article considers whether it would be appropriate to allow consumers to sue for Walker Process liability but to impose some limit on such suits. After considering the criteria for an appropriate screen for filtering out undesirable claims, the article proposes two such screening mechanisms.

Keywords: antitrust, patent, intellectual property

Suggested Citation

Leslie, Christopher R., The Role of Consumers in Walker Process Litigation. Southwestern Journal of Law and Trade in the Americas, Vol. 13, 2007; Chicago-Kent Intellectual Property, Science & Technology Research Paper No. 09-011. Available at SSRN: https://ssrn.com/abstract=1070242

Christopher R. Leslie (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Drive, Suite 1000
Irvine, CA 92697-1000
United States
949-824-5556 (Phone)

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