“The Monopoly Game: Has the Seventh Circuit Given Patent Holders a Get Out of Jail Free Card?”
1 September 2006
In a day when the U.S. Patent and Trademark Office grants upwards of 140,000 utility patents per year, intellectual property rights are more powerful than ever before. Yet, protecting competition and consumer welfare through the antitrust laws is equally important to our country’s economy. Unfortunately, in Schor v. Abbott Laboratories, the Seventh Circuit let antitrust considerations fall by the wayside at the expense of upholding patent rights and missed an important opportunity to settle the law of monopoly leveraging as applied to patent holders. By essentially punting on this issue, the court gave no guidance for antitrust plaintiffs wishing to allege such a theory of antitrust liability. Instead, the Seventh Circuit should have adopted the approach taken by the Ninth Circuit in Image Technical Services, Inc. v. Eastman Kodak Co. The Ninth Circuit’s approach balances the considerations of the patent and antitrust laws by allowing the court to address the potential anticompetitive effects of a patent holder’s conduct.
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