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

17 Pages Posted: 30 Sep 2013 Last revised: 25 Apr 2014

Robin Feldman

University of California Hastings College of the Law

Date Written: April 24, 2014

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.

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

Suggested Citation

Feldman, Robin, Ending Patent Exceptionalism & Structuring the Rule of Reason: The Supreme Court Opens the Door for Both (April 24, 2014). Minnesota Journal of Law, Science & Technology, Vol. 15, No.1, 2014; UC Hastings Research Paper No. 70. Available at SSRN: https://ssrn.com/abstract=2333291

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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