Last updated: November 21, 2012
Antitrust and Intellectual Property
Syllabus
The casebook is Christopher R. Leslie, Antitrust Law and Intellectual Property Rights: Cases and Materials
(2011).
Information on writing a paper is available here.
Date
Topic
Readings
Wednesday, August
29
Introductions to Intellectual
Property and Antitrust Law
3-14, 23-35, 39-46
Wednesday,
September 5
The Intersection Between
Antitrust and Intellectual
Property
46-65, 68-84
Wednesday,
September 12
Unilateral Refusals to License or
167-202
Deal
Wednesday,
September 19
This class will be
taught by Prof.
Refusals to License in the EU
Mariateresa
Maggiolino of
Bocconi University in
Milan.
EU Refusal to License materials
Wednesday,
September 26: no
class (Yom Kippur)
489-96
Wednesday, October
3
The Apple ebook case
Herbert J. Hovenkamp, Resale Price Maintenance:
Consignment Agreements, Copyrighted or Patented
Products and the First Sale Doctrine, University of
Iowa Legal Studies Research Paper No. 10-42,
December, 2010 (Revised) (Click on "Download This
Paper.")
Opinion & Order, United States .v Apple, Inc., No. 12
Civ. 2826 (S.D.N.Y. Sept. 6, 2012) (If you like, you
can also look at the Complaint and/or the Competitive
Impact Statement.)
Wednesday, October
10
Predatory Litigation and
Predatory Innovation
104-113, 215-31, 236-45
Hunton & Williams Antitrust Advisory, Court
Expands Walker Process Exception to Noerr
Pennington Immunity
Wednesday, October
17
This class will be
Pharmaceuticals
taught by Jack E. Pace
III, FLS '98, a partner
at White & Case.
245-55
Walgreen Co. v. AstraZeneca Pharmaceuticals L.P.,
534 F.Supp.2d 146 (D.D.C. 2008)
512-17
You do not need to read all the materials below
(though of course you should feel free). I
recommend that you read at least one filing from
each party, and then perhaps also the amicus brief of
the United States.
Brief of Defendant-Appellant Vernon Hugh
Bowman, Monsanto Co. v. Bowman, No. 2010-1068
(Fed. Cir. filed Feb. 11, 2011)
Wednesday, October
24
Bowman v. Monsanto Co.,
pending before the Supreme
Court
Brief for Plantiffs-Appellees Monsanto Company
and Monsanto Technology LLC, Monsanto Co. v.
Bowman, No. 2010-1068 (Fed. Cir. filed Apr. 14,
2011)
Reply Brief of Defendant-Appellant Vernon Hugh
Bowman, Monsanto Co. v. Bowman, No. 2010-1068
(Fed. Cir. filed May 2, 2011)
Petition for a Writ of Certiorari, Bowman v.
Monsanto Co., No. 11-796 (U.S. filed Dec. 20,
2011)
Brief in Opposition, Bowman v. Monsanto Co., No.
11-796 (U.S. filed Feb. 27, 2012)
Brief for the United States as Amicus Curiae,
Bowman v. Monsanto Co., No. 11-796 (U.S. filed
Aug. 24, 2012)
Wednesday, October
31
Class cancelled
(Sandy), rescheduled
for November 28
Patent Pools
Indian Head, Inc. v. Allied Tube & Conduit Corp.,
817 F.2d 938 (2d Cir. 1987), affirmed, 486 U.S. 492
(1988)
339-49
Wednesday,
November 7
Standard-Setting
Memorandum, TruePosition, Inc. v. LM Ericsson
Telephone Co., No. 11-4574 (E.D. Pa. Aug. 21,
2012) (There is a lot of detail here, and you don’t
need to read all of it carefully. The key question is
whether there is evidence that tends to exclude the
possibility of independent action on the part of the
defendants. Is there? If you think so, what do you
think is the most compelling example? If you think
not, what do you think comes closest? And if no
single incident is sufficient, do you think it is
appropriate to rely on the overall course of events?)
Memorandum, TruePosition, Inc. v. LM Ericsson
Telephone Co., No. 11-4574 (E.D. Pa. Oct. 4, 2012)
257-87 (Mr. Wolfram encourages you to read note 6
on pages 283-84 before you read the D.C. Circuit’s
opinion in Rambus.)
In addition to the assigned readings above, you
might want to take a look at some additional
materials:
Wednesday,
November 14
This class will be
taught by Richard
Wolfram, FLS '85, an
Deception in Standard-Setting
independent antitrust
practitioner, and David
Hecht, FLS ’08, an
associate at Quinn
Emanuel Urquhart &
Sullivan, LLP.
Mr. Wolfram has worked on standards issues
regarding Rembrandt, Inc. in television, which are
described in this petition:
American Antitrust Institute, Petition to the Federal
Trade Commission, Request for Investigation of
Rembrandt, Inc. for Anticompetitive Conduct that
Threatens Digital Television Conversion, Mar. 26,
2008.
Mr. Hecht worked on the recently decided Apple v.
Samsung litigation. Some information on this
litigation is provided below:
List of 50+ Apple-Samsung lawsuits in 10 countries
Joe Mullin, Apple v. Samsung verdict is in: $1 billion
loss for Samsung, Aug. 24, 2012
Amended Verdict Form, Apple Inc. v. Samsung
Electronics Co., Ltd., No. 11-CV-01846-LHK (N.D.
Cal. filed Aug. 24, 2012) (This document is
particularly remarkable, with the verdict reached in
about 22 hours of deliberations.)
Wednesday,
November 21: no class
This topic is not particularly focused on IP issues,
but the LIBOR rates are copyrighted, or at least
claimed to be protected, and the informational issues
are interesting. The facts are explained in the DPA
Statement of Facts below and in the complaint, but
you could also look first at a shorter explanation.
BBA Libor - bbalibor™ Explained
BBA Libor – Licensing
Wednesday,
November 28: This
class will be led by
LIBOR and Price-Fixing
Colleen Eccles, one of
your classmates
Department of Justice-Barclays deferred prosecution
agreement, with Statement of Facts
Consolidated Amended Complaint, In re LiborBased Financial Instruments Antitrust Litigation,
MDL No. 2262 (S.D.N.Y. Apr. 30, 2012) (As you
will notice, this is long. You don’t need to read all of
it, but you should try to get a sense of the facts and
antitrust allegations.)
Memorandum of Law in Support of Defendants’
Motion to Dismiss Plaintiffs’ Antitrust Claims, In re
Libor-Based Financial Instruments Antitrust
Litigation, MDL No. 2262 (S.D.N.Y. filed June 29,
2012) (Again, get a sense of the arguments. As
part II argues, this is a weird antitrust case. I’ve
commented briefly on the weirdness on pages 22-23
of the “Antitrust and Informational Restraints” article
in the Course Materials section of the TWEN site.)
642-44 (section 5.5)
Wednesday, December
5: This class will be
taught by Adam C.
Hemlock, FLS '96, a
Patent Pools
partner at Weil,
Gotshal & Manges
LLP.
Letter from Joel I. Klein, Assistant Attorney General,
U.S. Department of Justice, to Carey R. Ramos,
Paul, Weiss, Rifkind, Wharton & Garrison (June 10,
1999)
316-23
U.S. Philips Corp. v. Int'l Trade Comm’n, 424 F.3d
1179 (Fed.Cir.2005) (“Philips I”)
Princo Corp. v. International Trade Comm’n, 616
F.3d 1318 (Fed. Cir. 2010) (“Philips II”)