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The Walker Process Doctrine: Infringement Lawsuits as Antitrust Violations

38 Pages Posted: 24 Sep 2008  

Herbert Hovenkamp

University of Pennsylvania Law School; University of Pennsylvania - The Wharton School; University College London

Date Written: September 1, 2008

Abstract

Antitrust law's Walker Process doctrine permits a patent infringement defendant to show that an improperly maintained infringement action constitutes unlawful monopolization or an unlawful attempt to monopolize. The infringement defendant must show both that the lawsuit is improper, which establishes the conduct portion of the violation and generally satisfies tort law requirements, and also that the structural prerequisites for the monopolization offense are present. The doctrine also applies to non-patent infringement actions and has been applied by the Supreme Court to copyright infringement actions. Walker Process itself somewhat loosely derives from the Supreme Court's Noerr-Pennington line of cases holding that while the right to file a lawsuit is grounded in First Amendment concerns, the right does not extend to "baseless" litigation. The doctrine has not been particularly effective, however, mainly because patent boundaries are so poorly defined that it is often impossible to say that an infringement suit was baseless.

Keywords: Antitrust, Monopoly, Patents, Standard Setting

JEL Classification: K00, K2, K21, L4, L41

Suggested Citation

Hovenkamp, Herbert, The Walker Process Doctrine: Infringement Lawsuits as Antitrust Violations (September 1, 2008). U Iowa Legal Studies Research Paper No. 08-36. Available at SSRN: https://ssrn.com/abstract=1259877 or http://dx.doi.org/10.2139/ssrn.1259877

Herbert Hovenkamp (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
319-512-9579 (Phone)

University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

University College London ( email )

Gower Street
London, WC1E 6BT
United Kingdom

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