Antitrust & IP (LAW 6612): Spring 2013
Monday-Tuesday, 11:15 a.m.-12:10 p.m.
Room 65
Professor Cotter
This course will address the intersection of antitrust and intellectual property (IP)
law, from the early twentieth century to the important disputes of the present day. Topics
to be considered will include, among others, Walker Process and sham litigation claims
involving IP; tying and bundling of IP rights; unilateral refusals to deal; deceptive
conduct before standard setting organizations; patent pools and package licensing; and
pharmaceutical patent settlements involving reverse payments. Students are strongly
urged, though not required, to have taken or be in the process of taking, either antitrust or
an intellectual property course, before enrolling in this course.
I.
The casebook for this course is Christopher R. Leslie, Antitrust Law and
Intellectual Property Rights: Cases and Materials (Oxford University Press,
2010). You don’t need to buy any other materials for this course. From time to
time, I may put additional course materials on TWEN.
II.
Please register yourself as a participant on the TWEN site at your earliest
convenience.
III.
My office is Room 414 of Mondale Hall. My office hours will be from 2:30 to
3:25 p.m., Mondays and Tuesdays. I’m in my office much of the time during
business hours, however, and you should feel free to stop by any time I am there.
My phone number is (612) 624-7527 and my e-mail address is
cotte034@umn.edu. In the event you want to email me a question about patent
law, I will (1) prepare an answer to your question; and (2) using TWEN, email my
answer to your question to all of the members of the class who are registered as
participants on the TWEN site, so that everyone in the class may benefit from the
discussion.1 I will remove all identifying information from your question, so you
never have to feel embarrassed about asking a question the answer to which will
go to all of the members of the class.
IV.
Expectations for class
A.
Prerequisites. There are no prerequisites for this course. As noted above,
students are strongly urged, though not required, to have taken or be in the
process of taking, either antitrust or an intellectual property course, before
enrolling in this course.
B.
Attendance. I don’t take attendance every day; you’re adults. But here is
a
link
to
the
law
school
policy
on
attendance:
If you haven’t registered as a participant in the TWEN site, however, you won’t get my emailed answers.
So don’t forget to register as a participant!
1
http://www.law.umn.edu/current/policies-andprocedures.html?topicName=Attendance. If I notice that someone is not
attending on a regular basis, I will bring the matter to the attention of
Student Services.
V.
C.
Class preparation. I expect everyone to have read and thought about the
materials assigned for class. If you are not prepared on a given day, I
prefer that you give me a note or otherwise let me know in advance of
class. You are entitled to four “not prepared”s during the course of the
semester; more than four will affect your grade.
D.
Class starts at 11:15. Try not to come in late, unless you have a good
reason (e.g., an interview that runs over or something of that nature).
E.
First-name basis. I’ve never liked much of the formality that often
characterizes law school classes. Moreover, once you get out of law
school, you’ll probably be addressing senior partners and clients by their
first names; I see no reason why we should be on a more formal basis
here. Accordingly, I will address each of you by your first names, unless
you object, and I request that you address me by first name (“Tom”) as
well.
F.
Final exam. I will put an old final exam and the answer key thereto on the
TWEN site sometime in the next few weeks. It’s a little early to start
thinking about final exams, but you can probably expect that this year’s
exam will be similar in form to the exams from years past. Like the
previous exam, it will open-book, open-notes, etc.; and you will have three
hours to complete it during the regularly scheduled exam period, which is
Wednesday, May 15, at 8:30 a.m. (i.e., it will not be a take-home exam).
It will count for 100% of your grade and you will have three hours to
complete it. Any material we cover in class is fair game for the exam,
unless I advise you otherwise.
G.
Disabilities.
Students with disabilities should consult with the
University’s Office of Disability Services and the Law School’s Assistant
Dean of Students Office regarding any necessary classroom or examrelated accommodations.
H.
Honor Code. Students enrolled in the course are expected to at all times
comply with the Law School’s Honor Code and Academic Rules, as well
as the University’s Code of Student Conduct.
Assignments. The following is my best estimate of what we will cover, in what
order, and when. It is possible, however, that I may need to make some revisions
to these assignments if we proceed more quickly or more slowly than I anticipate.
2
Tues., Jan. 22: Chapter 1, A Primer on Intellectual Property (pp. 3-21).
Mon., Jan. 28: Chapter 1, pp. 3-21, continued.
Tues., Jan. 29: Chapter 2, A Primer on Antitrust Law (pp. 23-37). I will
supplement this, on TWEN, with some additional materials on introductory
microeconomics.
Mon., Feb. 4: Chapter 2, pp. 23-37, continued.
Tues., Feb. 5: Chapter 3, The Tension Between Antitrust and Intellectual
Property (Atari, Illinois Tool Works; begin materials on misuse, County Materials case)
(pp. 39-61).
Mon., Feb. 11: Chapter 3, continued (Lasercomb, Microsoft) (pp. 61-84).
Tues., Feb. 12: Chapter 4, Enforcement of Intellectual Property Rights (Walker
Process, Dippin’ Dots, Brunswick) (pp. 89-104).
Tues., Feb. 19: Chapter 4, continued (CVD, PREI, Primetime 24) (pp. 104-29).
Mon., Feb. 25: Chapter 5, Tying Arrangements and Intellectual Property (Int’l
Salt, Paramount, Loew’s, Outlet Comm’ns) (pp. 131-49).
Tues., Feb. 26: Chapter 5, continued (Digidyne, Siegel, Krehl, Tominaga) (pp.
149-65).
Mon., Mar. 4: Chapter 6: Unilateral Refusals to License or Deal (Data General,
Image Technical Services, Xerox, Intel) (pp. 167-213).
Tues., Mar. 5: Complete preceding day’s assignment. Then move on to Chapter
7, Design Changes and Predatory Innovation (Berkey) (pp. 215-31).
Mon., Mar. 11: Chapter 7, continued (CR Bard, Ford, Abbott Labs) (pp. 236-55).
Then move on to Chapter 8, Deceptive Conduct Before Standard-Setting Organizations
(Dell, Broadcom, Rambus) (pp. 257-87).
Tues., Mar. 12: Complete preceding day’s assignment.
Mon., Mar. 25: Chapter 9, Price Fixing and Intellectual Property (United States
Gypsum, Addamax) (pp. 291-305).
Tues., Mar. 26: Chapter 9, continued (Standard Oil, Matsushita, Summit) (pp.
305-27).
Mon., Apr. 1: Chapter 9, continued (BMI, Sony v. Soundview) (pp. 327-49).
3
Tues., Apr. 2: Chapter 10, Market Allocation and Intellectual Property Rights
(Hartford-Empire, Timken, Sealy, Topco) (pp. 351-69).
Mon., Apr. 8: Chapter 10, continued (Palmer, Clorox, Auwood) (pp. 369-81).
Tues., Apr. 9: Chapter 11, Pharmaceutical Settlements and Reverse Payments
(Cardizem, Tamoxifen, K-Dur) (pp. 387-94, 412-31, and K-Dur on TWEN).
Mon., Apr. 15: Complete preceding day’s assignment. Then move on to chapter
12, Agreements to Buy and Sell Intellectual Property as an Antitrust Violation (Singer,
Ciba-Geigy) (pp. 433-58).
Tues., Apr. 16: Chapter 13, Group Boycotts and Concerted Refusals to Deal
(FOGA, Jones Knitting, American Needle) (pp. 459-65 and American Needle on
TWEN).
Mon., Apr. 22: Chapter 14, Vertical Price Restraints and Intellectual Property (Dr.
Miles, Line Materials) (pp. 475-89).
Tues., Apr. 23: Chapter 14, continued (Paramount, LucasArts, Frankfort
Distilleries, Hudson Distributors, Leegin) (pp. 489-509).
Mon., Apr. 29: Chapter 15, Non-Price Licensing Restrictions (Braun, Quanta,
Static Controls, Transparent Wrap) (pp. 511-15, 527-34 and Quanta and Static Controls
on TWEN).
Wed., May 1: Chapter 16: The Antitrust Implications of Structuring Royalties
(Hazeltine, Brulotte, Zenith, Scheiber) (pp. 535-53).
Wed., May 15: Final exam at 8:30 a.m.
4