United States: IP and Antitrust
United States antitrust law seeks to encourage free and open competition by preventing exclusionary conduct that threatens the competitive process. Intellectual property rights (IPR) laws, by contrast, are designed to encourage innovation by granting IPR holders a limited statutory right to exclude competition. Compared to many jurisdictions, United States law balances this tension more frequently in favour of the IPR holder. In the United States, IPR holders are generally allowed to enforce their statutory right to exclude and to unilaterally decide to whom (if anyone) they will license their IPR and on what terms. Still, holding IPR does not confer a privilege or immunity to violate the antitrust laws. IPR holders risk violating those laws when they unlawfully acquire IPR (eg, through fraud on the rights-granting agency, typically the United States Patent and Trademark Office), or with respect to lawfully acquired IPR by:
• enforcing those rights in bad faith (eg, against parties to whom there is no colourable infringement claim);
• leveraging IPR beyond the scope of the rights granted to obtain competitive benefits not attributable to those rights; or
• acting collectively, rather than unilaterally, when enforcing those rights.
Originally Published in the Global Competition Review – The Antitrust Review of the Americas 2015.
Please see full Article below for more information.
1 The Antitrust Review of the Americas 2015
Published by Global Competition Review
in association with
Perkins Coie LLP
The Antitrust Review
of the Americas 2015
GLOBAL COMPETITION REVIEW
US: IP AND ANTITRUST
26 The Antitrust Review of the Americas 2015
United States: IP and Antitrust
United States antitrust law seeks to encourage free and open
competition by preventing exclusionary conduct that threatens the
competitive process. Intellectual property rights (IPR) laws, by con-
trast, are designed to encourage innovation by granting IPR holders
a limited statutory right to exclude competition. Compared to many
jurisdictions, United States law balances this tension more frequently
in favour of the IPR holder. In the United States, IPR holders are
generally allowed to enforce their statutory right to exclude and to
unilaterally decide to whom (if anyone) they will license their IPR1
and on what terms.2 Still, holding IPR does not confer a privilege
or immunity to violate the antitrust laws.3 IPR holders risk violating
those laws when they unlawfully acquire IPR (eg, through fraud on
the rights-granting agency, typically the United States Patent and
Trademark Office), or with respect to lawfully acquired IPR by:
• enforcing those rights in bad faith (eg, against parties to whom
there is no colourable infringement claim);
• leveraging IPR beyond the scope of the rights granted to obtain
competitive benefits not attributable to those rights; or
• acting collectively, rather than unilaterally, when enforcing those
Beyond these more common areas of antitrust risk, the interface
between antitrust and IPR law has been a subject of increasing inter-
est to the Department of Justice (DoJ) Antitrust Division and the
Federal Trade Commission (FTC). Through enforcement efforts,
advocacy filings and legislative outreach,4 the agencies have chal-
lenged the acquisition and assertion of IPR rights in an effort to
determine the correct balance between the rightful exercise of patent
rights and a patent holder’s incentive and ability to harm competition
through the anti-competitive use of those rights.5
This article will provide a general background regarding the laws
governing the IP-antitrust interface (with particular emphasis on
patents),6 with a focus on three areas of current interest: potential
competition law solutions to the ‘patent troll’ problem; reverse pay-
ment and ‘pay-for-delay’ settlements following the Supreme Court’s
Federal Trade Commission v Actavis decision;7 and judicial analysis
of fair, reasonable and non-discriminatory (FRAND) royalty rates.
The antitrust-IP interface
Antitrust claims are typically asserted by an alleged infringer (typi-
cally a competitor or potential competitor) as an affirmative defence
(patent misuse) or as a claim or counterclaim under the Sherman
Antitrust Act, 15 USC section 1 et seq. Occasionally, an IP-related
antitrust claim is brought by a direct or indirect consumer of the
patent holder’s product or the antitrust agencies.
A patent misuse defence, if successful, prevents the patent holder
from enforcing the patent during the period of misuse; it does not
provide a basis for affirmative relief through an award of damages.
The Federal Circuit’s decision in Princo Corp v ITC identified the ele-
ments and significantly limited the scope of the defence.8 In Princo,
the accused importer claimed the patent holder’s efforts to suppress
technology that was competitive with the patents-in-suit constituted
misuse of those patents. Rejecting the claim, the Federal Circuit
limited the defence to actions that a patent holder may have taken
to enlarge the physical or temporal scope of the patents-in-suit (eg,
tying).9 Because the alleged anti-competitive conduct at issue related
to technologies other than the patents-in-suit, it could not form the
basis of a patent misuse defence.10
Because Princo has limited alleged infringers and the ability
to involve patent misuse as a defence, some parties have turned to
antitrust claims under the Sherman or Clayton Acts. Such challenges
address the defendant’s anti-competitive conduct within an eco-
nomically defined relevant market, which may be broader than the
scope of any patent asserted by the defendant. The antitrust laws also
allow for the award of injunctive relief, treble damages and attorneys’
fees.11 The most common patent antitrust claims arise as follows:
• the patent holder seeks to enforce patents that were obtained
by fraud on the United States Patent and Trademark Office (a
Walker Process claim);12
• the patents were unlawfully obtained in violation of section 7 of
the Clayton Act, which prohibits acquisitions that substantially
lessen competition, or section 2 of the Sherman Act, which
• the patents holder’s infringement claims are both objectively
baseless, ‘in the sense that no reasonable litigant could realisti-
cally expect success on the merits’; and subjectively baseless,
because the patent holder’s actual purpose in filing suit was
to interfere directly with a competitor’s business relationship
through the use of the governmental process, as opposed to
the outcome of that process (the sham exception to the Noerr-
• the patent holder has engaged in licensing or other conduct (eg,
settlement activity) that exceeds the scope of the patent;15 or
• there has been fraud or other unfair conduct attendant to
Competition law solutions to the ‘patent troll’ problem
During the past year, the courts, competition enforcement agencies
and Congress have devoted increased attention to ‘patent assertion
entities’ (PAEs or ‘trolls’) – and their impact on consumers, technol-
ogy markets and the United States economy. PAEs do not develop
or commercialise patented technologies. Rather, they acquire from
other entities by purchase or assignment patent rights covering exist-
ing products or processes. They then monetise their investments by
demanding licence royalties from alleged infringers who make or use
the products or processes that read on the patents (referred to as ‘ex
post’ licensing).17 PAE revenue consists of royalty payments by those
parties through settlements or judgments.
As non-practising entities, PAEs are not subject to patent coun-
terclaims or the substantial costs attendant to providing large vol-
umes of their own data in discovery. Thus, in litigation against alleged
infringers, PAEs have the benefit of ‘litigation risk asymmetry’.18
Susan E Foster, Shylah R Alfonso and Barry J Reingold
Perkins Coie LLP
US: IP AND ANTITRUST
The PAE may function autonomously, picking or choosing its
own targets. Or it may operate as a ‘privateer’ secretly under service
to an operating company that has sponsored it to bring infringement
actions against third parties, typically the sponsor’s competitors.19
The PAE and its sponsoring entity typically share the revenues from
By enforcing its rights through a privateer, the operating com-
pany seeks the benefits of the privateer’s risk asymmetry. But the
use of a privateer does not render the sponsor immune from patent
claims by the privateer’s targets. If the target learns the sponsor’s
identity and has its own patents and resources to enforce them, it
can bring infringement actions against the sponsor.
Some PAEs limit infringement claims to practising entities
that use the patent to make commercial products. But where weak
patents are at issue and allegedly infringed by commercially suc-
cessful products, the PAE may pursue commercial users of those
products by sending ‘patent demand letters’ to hundreds of them.20
Individual settlements (though typically small in dollar value) are
common because many users are small businesses that cannot afford
to defend themselves in litigation, regardless of the lack of merit
underlying the PAE’s threatened suit. By 2012, PAEs accounted for
over 60 per cent of patent lawsuits. There is no reason to believe that
percentage has since declined.
Whether these suits serve or disserve consumer welfare is the
subject of debate. For the most part, PAEs have been criticised as
fostering baseless litigation, thus effectively imposing a ‘tax’ on
innovation harming the United States economy. Defenders of PAEs,
however, consider them entities that foster innovation by providing a
reward for inventors who lack the means to practise their inventions,
including universities, individual inventors and non-profit entities.
Defenders also contend that PAEs promote consumer welfare by
facilitating broad dissemination of technology, rather than exclusive
use by a single competitor.21
During 2014, draft legislation was introduced in both houses of
the United States Congress to amend the Patent Act by curtailing
PAE activity, typically through mandated fee-shifting and imposition
of sanctions against PAEs found to have brought groundless patent
actions. These bills stalled in Congress because of strong opposition
by segments of the technology community, some of whom argued
legislation is unnecessary because of recent Supreme Court deci-
sions that have lowered the burden of proof under section 28 of
the Patent Act, 35 USC section 285, which authorises trial courts to
award attorney’s fees to prevailing parties in infringement actions in
‘exceptional cases’.22 On the policy side, in September 2013, the FTC
announced its intention to open an investigation of PAE activities,
which will be followed by an agency report about the extent to which
PAEs affect competition and innovation.23
Whether competition – as distinct from patent – law offers
solutions to the PAE problem is unclear.24 The primary hurdle to
antitrust enforcement is the Noerr-Pennington doctrine, which pro-
vides antitrust immunity to activities seeking redress of grievances
through government action, including complaints filed in courts and
before administrative agencies. Grounded in the First Amendment
of the United States Constitution, the doctrine requires the alleged
infringer to show that a plaintiff ’s claim was a sham – that it was both
objectively and subjectively baseless.25 This is a very high standard.
Because false advertising is not constitutionally protected, several
states and the FTC have used false advertising statutes to challenge
PAEs. A leading target of enforcement has been MPHJ Technology
Investments LLC (MPHJ), a firm that sent patent demand letters to
dozens of commercial users of alleged infringing products. These
letters, the agencies claim, included ‘false and misleading’ statements
about the validity of the patents at issue, the likelihood they had been
infringed by the letter’s recipient, and the likelihood that, absent
payment by the recipient, MPHJ would actually sue. Investigations
were opened by the FTC and state enforcement officials in New
York, Nebraska, Vermont and Minnesota. Results have been mixed.
In January 2013, MPHJ entered into a settlement with the New
York Attorney General that bars the company from using ‘deceptive
tactics’ in demanding patent use licences from New York businesses
In January 2014, MPHJ filed a suit against the FTC in a Texas
federal court seeking to enjoin the agency from continuing its inves-
tigation of MPHJ, which, the company argued, was chilling its First
Amendment rights.27 The agency has filed a motion to dismiss the
complaint, which awaits decision.
In contrast with false advertising challenges such as those
described above, antitrust challenges confront doctrinal difficulties
because a PAE is not an actual or potential competitor of any of the
alleged infringers, and has no interest in impairing the competitive
dynamics of the infringers’ markets or excluding any infringer from
those markets. Although PAE enforcement imposes economic costs
on the alleged infringers (and indirectly their customers), it provides
no competitive advantage to a PAE in the underlying market or,
assuming the PAE offers roughly comparable licences to all alleged
infringers, to any one infringer.28 This doctrinal hurdle is distinct
from the Noerr-Pennington immunity that PAE infringement claims
may also enjoy.
In Intellectual Ventures I LLC v Capital One Corp,29 the plaintiff
was a PAE that had acquired 80,000 patents and patent applications,
including 3,500 business process patents for technologies used by
financial services firms. Capital One, an alleged infringer, filed coun-
terclaims, arguing that Intellectual Venture’s (IV) attempt to ‘hold up’
the defendant by filing baseless waves of patent infringement claims
constituted monopolisation and attempted monopolisation in viola-
tion of section 2 of the Sherman Act, 15 USC section 2. Capital One
also alleged that IV’s original acquisition of its patent portfolio had
substantially lessened competition in violation of section 7 of the
Clayton Act (15 USC section 18).
Capital One contended that ‘by forcing its victims to either face
endless, costly and disruptive patent litigation or accept licenses
to thousands of potentially irrelevant, invalid, and/or unenforce-
able patents’, IV had unreasonably restrained competition by
‘eliminate[ing] the economic incentive of its coerced licensees to
challenge the validity of the individual patents within the portfolio’,
and by ‘reduc[ing] the incentive to innovate, since companies such
as Capital One foresee that if they achieve success by selling a prod-
uct with enough revenue to attract [IV], [IV] will seek to “tax” it’.30
This conduct, Capital One argued, will cause ‘an increase in prices
to consumers, a reduction in the rewards for successful innovation,
and a decline in the quantity, quality and rate of innovation’.31
The court granted IV’s motion to dismiss. Central to the court’s
analysis was its observation that Capital One had failed to allege an
economically valid ‘proposed market [that] consists of an ‘area of
effective competition’ between IV and the commercial banks who
are the alleged victims of IV’s anti-competitive conduct.’32 This was
fatal to its Sherman Act claims because, absent a properly defined
relevant market, the plaintiff cannot prove that the defendant
enjoyed the monopoly or market power. The court rejected Capital
One’s argument that IV’s alleged ability to exact supra-competitive
royalty rates was direct evidence of IV’s market power, thus making
relevant market allegations unnecessary.33
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28 The Antitrust Review of the Americas 2015
Similarly lacking, the court found, were allegations that IV had
acted wilfully to acquire or maintain its power in a relevant market
by using it ‘to foreclose competition, to gain a competitive advantage
or to destroy a competitor’.34 Indeed, the court observed, such alle-
gations would have flown in the face of Capital One’s position that
‘IV not only does not compete [with Capital One], it also does not
engage in any commercial operations at all’.35
Finally, the court dismissed Capital One’s Clayton Act claim,
finding that the defendant had not alleged that IV’s patent acquisi-
tions themselves had lessened competition (eg, by affording IV
control over all substitute or competing technologies). Because the
alleged competitive harms arose not from the acquisitions, but from
conduct that post-dated them, Capital One had failed to state a
Clayton Act claim.36
Although antitrust liability for the filing of meritless infringe-
ment cases by a PAE has not yet been found, no immunity attaches
to patent settlement agreements that include ancillary restrictions
that impair competition in a relevant market.37 In the context of
PAE activity, one example would be agreements that include provi-
sions barring the licensee from licensing third-party technology
competitive with the PAE’s patent and thus impairing competition in
technology and innovation markets.38 Another example would be an
agreement between the PAE and the primary infringer (Company A)
that obligates the PAE to pursue A’s competitors and demand from
them materially higher royalties than are paid by A, thus impairing
competition between A and those competitors.
Antitrust claims under the Sherman Act and the Federal Trade
Commission Act, 15 USC section 45, may also be available if the troll
is acting as a ‘privateer’ sponsored by an operating company that
has deputised it to bring infringement actions against the company’s
competitors to raise their costs and impair competition with the
sponsor. The privateer’s status as an agent of the operating company
may not deprive the privateer of its Noerr-Pennington immunity
unless the claims themselves are objectively and subjectively base-
less. But the antecedent transfer of patents by the operating company
to the PAE and any agreements relating to their future enforcement
may be subject to challenge as an unlawful conspiracy in restraint of
trade by the operating company and the PAE, 15 USC section 1, or
an attempt to monopolise by the operating company. 15 USC section
Reverse payment or ‘pay-for-delay’ settlements after FTC
In recent years, reverse payment or ‘pay-for-delay’ patent settlements
have been challenged by the antitrust agencies and the plaintiffs’ bar
as anti-competitive. These cases arise when a patent holder (typically,
a brand-name pharmaceutical company) settles patent litigation
by paying the defendant (a generic pharmaceutical competitor) to
delay or abandon its plan to launch a competing drug. On aver-
age, the price of generic drugs is 85 per cent less than that of their
brand-name counterparts, and in 2010 the FTC estimated that such
settlements cost American consumers US$3.5 billion a year. As a
result, the antitrust agencies have repeatedly attacked pay-for-delay
settlements in court,40 participated as amici in private actions,41 and
supported legislative efforts to curb such agreements.
Before the Supreme Court’s decision in FTC v Actavis, the legality
of these settlements, and the standard to be applied to them, was the
subject of a significant federal circuit split. In June 2013, the Supreme
Court resolved this split, holding that the rule of reason would apply
to reverse payment settlements. The case arose in 2003, when Actavis,
Inc (then Watson Pharmaceuticals) filed an Abbreviated New Drug
Application seeking approval to market a generic drug modelled
on a patented synthetic testosterone, AndroGel. The owner of the
patent, Solvay Pharmaceuticals, filed suit against Actavis and others
for patent infringement. In 2006, the parties’ entered into a settle-
ment whereby Solvay (the patent owner) agreed to pay Actavis (the
alleged infringer) US$19 million to US$30 million a year for nine
years. Additionally, Actavis agreed to delay entry into the market
until 31 August 2015, about five years before expiration of the patent.
In 2009, the FTC and the attorney general for the State of California
sued Actavis in the Central District of California. The case was trans-
ferred to the Northern District of Georgia where the district court
dismissed the complaint. On appeal, the Eleventh Circuit affirmed
applying the ‘scope of the patent’ test: ‘absent sham litigation or fraud
in obtaining the patent, a reverse payment settlement is immune
from antitrust attack so long as its anti-competitive effects fall within
the scope of the exclusionary potential of the patent’.42
In applying the ‘scope of the patent’ rule, the Eleventh Circuit
rejected the FTC’s argument that ‘an exclusion payment is unlawful
if, viewing the situation objectively as of the time of the settlement,
it is more likely than not that the patent would not have blocked
generic entry earlier than the agreed-upon entry date’.43 This ruling
conflicted with that of the Third Circuit in In re K-Dur Antitrust
Litigation, where the court rejected the scope of the patent test, hold-
ing that such agreements should be analysed under a quick-look rule
of reason and that reverse payments to generic competitors should
be deemed presumptively anti-competitive and unlawful.44
The Supreme Court’s decision rejected both tests. The Court first
rejected any presumption of anti-competitive effect or application
of a quick-look test, noting that the likelihood of a reverse payment
bringing about anti-competitive effects may depend on the industry
in which it is adopted, the relative size of the payment (ie, in com-
parison to expected litigation costs) and any other justifications for
Conversely, the Supreme Court expressly rejected the Eleventh
Circuit’s holding that reverse-payment agreements are immune from
antitrust scrutiny where the agreement’s ‘anti-competitive effects fall
within the scope of the exclusionary potential of the patent.’46 ‘For
one thing,’ reasoned the majority, ‘to refer, as the Circuit referred,
simply to what the holder of a valid patent could do does not by itself
answer the antitrust question. The patent here may or may not be
valid, and may or may not be infringed.’47 The Court further noted
that settlements of this type tend to have significant adverse effects,
and it is inappropriate to measure the settlement’s anti-competitive
effects solely against patent law policy: ‘Patent and antitrust policies
are both relevant in determining the ‘scope of the patent monopoly’
– and consequently antitrust law immunity – that is conferred by a
patent.’48 Thus, the Court held, ‘Whether a particular restraint lies
‘beyond the limits of the patent monopoly’ is a conclusion that flows
from that analysis and not … its starting point.’49
Although the Supreme Court thus rejected the ‘scope of the
patent’ rule, it acknowledged that the Eleventh Circuit’s conclusion
found some support in general policy considerations favouring set-
tlement – particularly the practical concern that antitrust scrutiny of
reverse payment settlements would prove time-consuming, complex
and expensive. These considerations, however, were outweighed by:
• the potential for adverse effects on competition (exclusion and
• the possibility that these adverse effects may be unjustified;
• the fact that such settlements are more likely to be entered into
by companies with important patents and potentially significant
US: IP AND ANTITRUST
• the Court’s view that the administrative burdens may not be as
difficult as perceived (ie, the size of the reverse payment may act
as a surrogate for a patent’s weakness, thereby avoiding a trial on
validity or infringement); and
• the fact that the Court’s ruling and the increased risk of liability
will not prevent litigants from settling their lawsuits.50
The Supreme Court’s Actavis decision left several questions to be
resolved by the lower courts. Some of these, such as the central ques-
tion of how the rule of reason will in fact be applied in such cases,
have not yet been directly addressed by the courts outside the motion
to dismiss context.51 Others, however, have provided fertile ground
for controversy. For example:
• What is the implication to patent settlements other than
reverse payment settlements? While the FTC has advocated
that the courts review all patent settlements that may have
anti- competitive potential,52 in the year following the Supreme
Court’s Actavis decision, this suggestion has not been adopted by
the courts.53 The Actavis decision itself specifically stated that it
did not intend the ruling to apply to ‘ordinary patent settlements’,
but it is clear that defining the boundary of such settlements will
be the subject of additional test cases.
• Does liability under Actavis turn on the existence of a monetary
payment? On this issue, the lower courts have been split. Some
courts have allowed the claim to proceed if there is some allega-
tion of additional value being exchanged for the agreement to
stay out of the market,54 while others have stated that there is no
valid claim absent an allegation of some form of monetary pay-
ment (a ‘large monetary payment’).55 Additional consideration
or value in these cases has taken the form of an agreement to
refrain from introducing a generic version of the product for a
period of time or excess consideration being paid in connection
with the settlement of counterclaims or unrelated litigation.56
• What is a ‘large’ monetary payment? On this question, courts
and commentators appear to be guided largely by the Supreme
Court’s statement that ‘the likelihood of a reverse payment bring-
ing about anti-competitive effects depends upon its size, its scale
in relation to the payors’ anticipated future litigation costs, its
independence from other services for which it might represent
payment, and the lack of any other convincing justification.’
While we await additional clarifying decisions, parties entering into
any patent settlement are advised to carefully identify the pro-com-
petitive rationale for any payments and to take appropriate steps to
confirm that the settlement is reasonable. The courts have continued
to affirm that other strategies, such as obtaining judicial approval for
the underlying settlement, will not bar a subsequent antitrust claim.57
Judicial analysis of FRAND royalty rates
As reported last year, requests for injunctive relief based on FRAND
encumbered patents or claims that FRAND obligations had been
breached raise several issues, including whether the patent user is a
‘willing’ licensee and whether the patent holder’s offer was ‘reason-
able.’ Judicial decisions this past year have provided additional guid-
ance in answering both of these questions.
In Ericsson, Inc v D-Link, Systems, Inc,58 Ericsson sued several
defendants alleging wilful infringement of a number of patents related
to the 802.11n wireless standard. The jury found for Ericsson and
awarded it approximately US$10 million in damages. In response,
the defendants moved for judgment as a matter of law based in part
on the claim that Ericsson breached its RAND obligations.59
In ruling on the motion, the Eastern District of Texas first
explained that RAND licensing entails a negotiation.
A patent holder does not violate its RAND obligations by seeking
a royalty greater than its potential licensee believes is reasonable.
Similarly a potential licensee does not violate its RAND obligations
by refusing a royalty the patent holder believes is reasonable. Instead,
both sides’ initial offers should be viewed as a starting point in
To that end, the court held that the negotiation is ‘a two-way street’,
with both parties obligated to negotiate in good faith.61
Turning to the dispute before it, the court denied the defend-
ants’ motion, holding that the defendants were not willing licensees
and that Ericsson had not breached its RAND obligations.62 With
respect to one of the defendants, Intel, the court explained that
because Ericsson had offered Intel a licence prior to trial at the same
rate and on the same terms as Ericsson’s offers to other defendants,
which it then amended to reflect the jury verdict, Ericsson had satis-
fied its good faith efforts to negotiate a RAND licence. Conversely,
because Intel had ‘never meaningfully engaged in licensing talks
with Ericsson after Ericsson’s initial offer’, Intel had not fulfilled its
good faith efforts to negotiate and thus, was not a willing licensee.63
Importantly, the court explained that ‘Intel cannot rely on its failure
to negotiate to prove Ericsson’s failure to make a legitimate offer.’64
A twist on this analysis came in InterDigital Communications, Inc
v ZTE Corp.65 In this case, InterDigital brought patent infringement
claims against defendants, to which defendants counterclaimed that
InterDigital had breached its obligation to license the patents on
FRAND terms.66 The District of Delaware granted a motion to dis-
miss the counterclaim, explaining that addressing the counterclaim
would serve ‘no useful purpose’.67 The court reasoned that because
defendants had not agreed to be bound by whatever FRAND rate the
court set (which could be construed to mean that defendants were
not willing licensees), the process would not help resolve the infringe-
ment case against them. As a result, the court concluded that it did
not have subject matter jurisdiction to consider the counterclaim.68
Assuming the patent user is a willing licensee, the next step is
to evaluate whether the patent holder complied with its FRAND
obligations. To determine whether the patent holder had breached
its duty of good faith negotiation, the trier of fact must compare the
licence offer to a reasonable FRAND rate or range. However, until
recently, there was no guidance on what was a true FRAND rate or
how it was determined.
That changed with the Microsoft Corp v Motorola, Inc case,69
wherein the Western District of Washington (Robart, J) became the
first court in a 207-page opinion to set the applicable FRAND rate.
Microsoft claimed that Motorola had breached its duty to offer a
licence on FRAND terms for patents essential to practise the 802.11
standard (related to wireless local area networks, commonly known
as ‘WLAN’ or ‘Wi-Fi’) and the H.264 standard (related to video
coding technology).70 The court began its analysis by setting up the
hypothetical negotiation and adopted an ex ante incremental value
approach. The court started with the Georgia-Pacific factors and then
made several adjustments to reflect the purpose of the FRAND com-
mitment – that a patent embodied fully or partially within a standard
should be accessible without undue constraints, thereby promoting
the widespread adoption of the standard.71 For example, the court
excluded Georgia-Pacific factors 4 (licensor’s policy and marketing
programme to maintain its patent monopoly) and 5 (commercial
relationship between licensor and licensee) because they did not
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30 The Antitrust Review of the Americas 2015
apply in the FRAND context where the patent holder is obligated to
license the patent and must do so under FRAND terms.72 The court
made further adjustments to the analysis, including:
• ex ante – any value associated with the incorporation of the
patented technology into the standard should be factored out
because the hypothetical negotiation takes place before the
standard is implemented;73
• royalty stacking – to address the risk of royalty stacking, the
court considered the aggregate royalties that would apply if other
standard essential patent (SEP) holders made royalty demands of
• relative value of patented technology – the court considered both
the importance of the features covered by the patented technol-
ogy to the standard and the importance of the standard and the
patented technology to the ultimate product.75 In making these
evaluations, the court considered:
• whether the patents-in-suit were essential to the standard’s
optional or peripheral features, or the standard’s core fea-
tures, noting that those essential to optional features would
be valued less than those essential to core features;76
• the extent to which the accused product practices specific
features of the patents-in-suit as opposed to the standard
• the total number of SEPs under the standard and the total
number of patent holders related to the standard;78
• the patent holder’s level of involvement in the standard-
• the quantifiable value of the contribution of the patents-
in-suit to the standard, including any efficiency gains or
improvements over prior or alternate technology; and80
• the existence of alternate technologies and whether the
alternatives could have been integrated into the standard;81
• comparable licences – to qualify as a comparable licence, the
licence must have been negotiated under a FRAND obligation
(or some type of comparable obligation) or must follow the
customary practice of a business licensing FRAND patents.82 The
court added that:
• licences that result from the settlement of litigation, even
if they involve FRAND-obligated patents, are not a reliable
indicator of a FRAND royalty rate; and83
• portfolio licences may be considered, but only the appor-
tioned value of the FRAND-obligated patents within the
• patent pooling agreements – these agreements may be a reliable
indicator of the applicable FRAND rate if they are both compa-
rable and appropriately adjusted.85
Whether a patent pooling agreement is comparable turns on the
timing of the formation (agreements formed after the standard was
adopted but before there was widespread adoption of the standard
are more reliable),86 the number and diversity of pool participants
as licensors and licensees (the greater the number and diversity the
greater the reliability),87 and whether and the extent to which the
potential licensor participated in the pooling agreement.88
A patent pooling agreement may be adjusted up or down based
on the following considerations:
• whether the pooling rates tend to be lower than two-party nego-
• whether the pooling agreement allocates royalties based on the
quantity of the licensor’s patents in the pool, not necessarily the
quality of those patents;90 and
• whether members receive value from the pool membership
other than royalties (in which case such value should be factored
out of the analysis).91
Under this framework, the court determined the FRAND rate as a
range between 0.555 and 19.5 cents per unit (depending upon the
product or standard at issue).92 Because Motorola’s licence offer
was for approximately US$3.00 to US$4.50 per unit, the jury found
that Motorola had breached its FRAND obligations and awarded
Microsoft damages in addition to US$3 million in attorneys’ fees and
costs as breach of contract damages.93 By prevailing on the breach
of contract claim, Microsoft was able to recover its fees and costs for
the infringement litigation without having to prove the exceptional
case requirements of 35 USC section 285.
The second court to set a FRAND rate was the Northern District
of Illinois (Holderman, J) in In re Innovatio IP Ventures, LLC Patent
Litigation.94 Innovatio sued coffee shops, hotels, restaurants and
other users of its standard essential Wi-Fi patents. Cisco Systems
Inc and other manufacturers of the Wi-Fi equipment used by the
defendants filed a declaratory judgment action seeking a determina-
tion that the Wi-Fi patents were invalid and that the equipment did
not infringe the patents.95 Innovatio made initial licence offers for
its technology ranging from US$3.39 per access point, US$4.72 per
laptop, and up to US$36.90 per barcode scanner.96
In an effort to encourage settlement, the court held a bench trial
to set the applicable FRAND rate before ruling on infringement so
the parties could evaluate potential damages. The Innovatio court
followed much of the Microsoft court’s methodology, noting that
it ‘provide[s] a framework for any court attempting to determine
a RAND licensing rate for a given patent portfolio.’97 However, the
Innovatio court made some modifications: it used the price of the
Wi-Fi chip imbedded in the equipment (the smallest saleable unit),
not the end product itself, as the royalty base.98 By doing so, the
analysis of the importance of the patent to the standard and the
accused product merged into one.99
The court also modified the ex ante hypothetical negotiation
by including ex post considerations. Although the hypothetical
negotiation takes place before the patents-in-suit are incorporated
into the standard (ex ante), where the patents-in-suit were subse-
quently determined to be essential to the standard (ex post), the
FRAND rate may not be discounted based on uncertainty about the
essentiality of the patents-in-suit as the Microsoft court did.100 In
addition, although alternative technologies may be considered, only
those reviewed by the standard-setting body will be factored into the
analysis.101 The court further noted that patented alternatives will
not discount the hypothetically negotiated royalty as much as public
domain technology might.102
With these modifications, the court determined that the patents-
in-suit were of ‘moderate to moderate-high importance’ to the
Wi-Fi standard.103 Despite that finding, the court set the reasonable
FRAND rate at 9.56 cents per Wi-Fi chip, an amount significantly
lower than that initially offered by Innovatio.104
While these cases are helpful in establishing a roadmap for
determining whether a user is a willing licensee and what is a
reasonable FRAND rate or range, they also demonstrate the
fact-intensive nature of these determinations. As this framework
continues to develop in future cases, patent holders and users will
need to reevaluate the value of FRAND-obligated patents and the
reasonableness of their licensing demands.
US: IP AND ANTITRUST
1 In re Indep Serv Orgs Antitrust Litig, 203 F.3d 1322 (Fed Cir 2000)
(upholding patent holders’ refusal to deal and refusing to consider
subjective motivation). But see Image Tech Servs, Inc v Eastman Kodak
Co, 125 F.3d 1195 (9th Cir 1997) (articulating a rebuttable presumption
in refusal to deal case).
2 Brulotte v Thys Co, 379 US 29, 33 (1964) (‘A patent empowers the
owner to exact royalties as high as he can negotiate with the leverage
of that monopoly’); Gen Talking Pictures Corp v W Elec Co, 304 US 175
(upholding field of use restrictions), aff’d on reh’g, 305 US 124 (1938).
3 Intergraph Corp v Intel Corp, 195 F.3d 1346, 1362 (Fed Cir 1999).
4 See, eg, FTC, ‘The Evolving IP Marketplace: Aligning Patent Notice and
remedies with Competition (March 2011), available at www.ftc.gov/
5 Press release, DoJ, ‘Statement of the Department of Justice’s Antitrust
Division on Its Decision to Close Its Investigations of Google Inc.’s
Acquisition of Motorola Mobility Holdings Inc’ (13 February 2012),
available at, www.justice.gov/atr/public/press_releases/2012/280190.
6 The agencies have indicated that they will apply the same antitrust
principals to patents, copyrights and trade secrets. DoJ & FTC, ‘Antitrust
Guidelines for the Licensing of Intellectual Property’, section 1 (1995).
However, the courts have been less uniform in their treatment of
different forms of intellectual property. See, eg, Data Gen Corp v
Grumman Sys Support Corp, 36 F.3d 1147, 1184-87 (1st Cir 1994)
(adopting different standards for copyright and patent claims).
7 133 S. Ct. 2223 (2013).
8 Princo Corp v ITC, 616 F.3d 1318, 1334 (Fed Cir 2010). The court
further held that a party asserting misuse establish an antitrust
9 35 USC section 271(d) (prohibiting a patent misuse claim based on
tying unless ‘the patent owner has market power in the relevant market
for the patent or patented product on which the license or sale is
conditioned’). In 2006, the Supreme Court abandoned the presumption
that intellectual property confers market or monopoly power. Ill. Tool
Works Inc v Indep Ink, Inc, 547 US 28 (2006).
10 Princo, 616 F.3d at 1331, 1334.
11 Depending on the jurisdiction, some claims may be lost if not asserted
in the original patent case. Compare Critical-Vac Filtration Corp v
Minuteman Int’l, Inc, 233 F.3d 697, 703-04 (2d Cir 2000) (predatory
patent filing claim compulsory) with Hydranautics v Filmtec Corp, 70
F.3d 533, 536 (9th Cir 1995) (predatory patent claim not compulsory).
12 Walker Process Equip, Inc v Food Mach & Chem Corp, 382 US 172
(1965). See also Ritz Camera & Image, LLC v ScanDisk Corp, 700 F.3d
503 (Fed Cir 2012) (direct purchasers of patented products may bring
Walker Process claim).
13 Atari Games Corp v Nintendo of Am, Inc, 897 F.2d 1572 (Fed Cir 1990);
SCM Corp v Xerox Corp, 645 F.2d 1195 (2d Cir 1981); Kobe, Inc v
Dempsey Pump Co, 198 F.2d 416 (10th Cir 1952). See also DoJ & FTC,
‘Antitrust Guidelines for the Licensing of Intellectual Property’, section 1
(1995). The acquisition of IP (including the grant of an exclusive licence)
may trigger the obligations to file a premerger notification and report
form with the FTC and to wait the statutory waiting period prior to
consummation of the transaction. 15 USC section 18a.
14 Prof’l Real Estate Investors v Columbia Pictures Indus, Inc, 508 US 49,
50 (1993) (PRE). The Noerr-Pennington doctrine immunises legitimate
efforts to petition the government and in this context relates to efforts
to enforce a patent holder’s rights through the judiciary. Noerr and the
sham exception set forth in PRE have also been applied to demand
letters. Globetrotter Software, Inc v Elan Computer Grp, Inc, 362 F.3d
1367 (Fed Cir 2004). Other market communications may not be so
protected. Id. See also Experience Hendrix, LLC v HendrixLicensing.com,
LTD, 766 F. Supp. 2d 1122, 1146 (WD Wash 2011); Soilworks, LLC v
Midwest Indus Supply, Inc, 575 F. Supp. 2d 1118, 1126 (D Ariz 2008).
15 United States v Krasnov, 143 F. Supp. 184 (ED Pa 1956) (horizontal
refusal to deal per se illegal where dominant market participants
settled patent infringement lawsuit by executing a cross-licence that
prevented each of them from granting a licence to a third party absent
the consent of the other), aff’d sub nom. Oppenheimer v United
States, 355 US 5 (per curiam), and aff’d sub nom. Comfy Mfg Co
v United States, 355 US 5 (1957); United States v Microsoft Corp,
253 F.3d 34 (DC Cir 2001) (affirming tying allegation and rejecting
allegation that restrictions were justified by copyrights).
16 Broadcom Corp v Qualcomm Inc, 501 F.3d 297, 314 (3d Cir 2007).
17 See Intellectual Ventures I LLC v Capital One Fin Corp, No. 1:13-cv-
00740 (AJT/TRJ), 2013 WL 6682981 (ED Va, 18 December 2013).
18 Michael Carrier, ‘Patent Assertion Entities: Six Actions the Antitrust
Agencies Can Take’, CPI Antitrust Chron, Winter 2013.
19 Tom Ewing, ‘Indirect Exploitation of Intellectual Property Rights by
Corporations and Investors’, 4 Hastings Sci & Tech LJ 1 (2012).
20 Ryan Davis, ‘ArrivalStar Tops List of Most Litigious Patent Trolls’,
Law360 (13 May 2014).
21 ‘The Great Troll Debate – 2 Perspectives: Part 2’ (Interview with
Cascades Ventures CEO Tony Brown), Law360 (14 May 2014).
22 Octane Fitness, LLC v Icon Health & Fitness, Inc, 134 S Ct 1749 (2014);
Highmark Inc v Allcare Health Mgmt Sys, Inc, 134 S Ct 1744 (2014).
23 Press release, FTC, ‘FTC Seeks to Examine Patent Assertion Entities and
Their Impact on Innovation, Competition’ (27 September 2013),
24 See Ilene Gotts et al, ‘Antitrust Concerns of Patent Acquisition’, CPI
Antitrust Chron, September 2012.
25 Professional Real Estate Investors, Inc v Columbia Pictures Industries,
Inc, 508 US 49 (1993).
26 David McAfee, ‘NY AG to Bar “Patent Trolls” Deceptive Practices’ (13
27 MPHJ Tech Invest, LLC v FTC, Civil Action No. 6:14-cv-11 (WD
Tex, 13 January 2014), available at http://assets.law360news.
28 See generally ‘Symposium: Patent Assertion Entities,’ 79 Antitrust Law
Journal, Issue 2 (at pp395–555) (2014). Cf Rambus Inc v FTC, 522 F.3d
456, 464 (DC Cir 2008) (monopolist’s efforts ‘to obtain higher prices
[from its downstream licensees] normally has no particular tendency to
exclude rivals and thus to diminish competition’).
29 2013 WL 6682981.
30 Id at *3 (internal quotation marks and citations omitted).
32 Id at *5 (citing Intergraph Corp, 195 F.3d at 1353).
33 Id at *6.
34 Id at *6 (quoting United States v Griffith, 334 US 100, 107 (1948)).
35 Id at *7.
36 Id at *9.
37 FTC v Actavis, Inc, 133 S Ct 2223 (2013).
38 DoJ & FTC, ‘Antitrust Guidelines for the Licensing of Intellectual
Property’, section 3.2 (1995) (defining and differentiating technology
and innovation markets).
39 United States v Singer Mfg Co, 374 US 174 (1963) (transfer of patent
from Swiss firm to US licensee to facilitate infringement actions against
Japanese competitors held unlawful conspiracy in restraint of trade);
Clean Conversion Techs v CleanTech Biofuels, Inc, 2012 US Dist LEXIS
117279 (SD Cal 2012) (acquisition of competing patent portfolios
US: IP AND ANTITRUST
32 The Antitrust Review of the Americas 2015
plus effort to terminate only licence create dangerous possibility of
defendant obtaining monopoly power); see also Mark Popofsky &
Michael Laufert, ‘Patent Assertion Entities and Antitrust: Operating
Company Patent Transfers’, Antitrust Source, April 2013.
40 See, eg, FTC v Cephalon, Civil Action No. 08-cv-2141-RBS, 2014 WL
982848 (ED Pa, 13 March 2014; FTC v Watson Pharm, Inc, 677 F.3d
1298 (11th Cir 2012).
41 See, eg, FTC Amicus Brief, In re Lamictal Direct Purchaser Antitrust
Litig, No 14-1243 (3d Cir 28 April 2014), available at www.ftc.gov/
antitrust-litigation/140428lamictalbrief.pdf; FTC Amicus Brief, In re
Effexor-XR Antitrust Litig, No. 3:11-cv-05479 (DNJ, 14 August 2013),
available at www.ftc.gov/sites/default/files/documents/amicus_briefs/
Brief, In re Wellbutrin XL Antitrust Litig, No. 2:08-cv-2431-MAM
(ED Penn, 26 September 2013), available at www.ftc.gov/policy/
DoJ Amicus Brief, In re K-Dur Antitrust Litig, Nos. 10-2077, 10-2078,
10-2079 (3d Cir May 18, 2011), available at www.justice.gov/atr/cases/
f271300/271395.pdf; FTC Amicus Brief, In re K-Dur Antitrust Litig,
Nos. 10-2077, 10-2078, 10-2079 (3d Cir 18 May 2011), available at
www.ftc.gov/os/2011/05/110518amicusbrief.pdf. See also FTC Amicus
Brief, In re Lamictal Direct Purchaser Antitrust Litig (exclusive license
and noncompete can trigger rebuttable presumption under K-Dur)
(position rejected in In re Lamictal Direct Purchaser Antitrust Litig, Civ.
No. 12-995 (WHW), 2012 WL 6725580 (DNJ, 6 December 2012)).
42 Watson Pharm, 677 F.3d at 1312. The Eleventh Circuit noted that
the scope of the patent rule had previously been adopted by its
prior decisions as well as the Federal Circuit, the Second Circuit and
California. See, eg, Ark Carpenters Health & Welfare Fund v Bayer AG,
604 F.3d 98 (2d Cir 2010) (following In re Tamoxifen Citrate Antitrust
Litig, 466 F.3d 187 (2d Cir 2006)), cert denied, 131 S Ct 1606 (2011);
In re Ciprofloxacin Hydrochloride Antitrust Litig, 544 F.3d 1323, 1336
(Fed Cir 2008); Schering-Plough Corp v FTC, 402 F.3d 1056 (11th Cir
2005) (following Valley Drug Co v Geneva Pharm, Inc, 344 F.3d 1294
(11th Cir 2003), cert denied, 543 US 939 (2004); In re Cipro Cases I &
II, 269 P.3d 653 (Cal 2012).
43 Watson Pharm, 677 F.3d at 1312.
44 686 F.3d 197, 217 (3d Cir 2012).
45 Actavis, 133 S Ct at 2237.
46 Id at 2230-31.
47 Actavis, 133 S Ct at 2227.
48 Id at 2231.
50 Id at 2244.
51 But see In re Nexium (Esomeprazole) Antitrust Litig, 968 F. Supp. 2d
367 (D. Mass. 2013) (applying a rule of reason analysis in motion to
52 FTC Amicus, In re Effexor XR Antitrust Litig at 9.
53 See, eg, In re Lamictal Direct Purchaser Antitrust Litig, No. 12-cv-
995 (WHW), 2014 WL 282755, at *6-7 (DNJ, 24 January 2014). Cf
Intellectual Ventures, 2013 WL 6682981 (declining to apply Actavis to
allegations of coerced settlements).
54 In re Lipitor Antitrust Litig, No. 3:12-cv-2389 (PGS), 2013 WL 4780496,
at *26 (DNJ, 5 September 2013) (finding that amendment of complaint
to assert reverse payment through unrelated settlements was not futile;
‘nothing in Actavis strictly requires that the payment be in the form of
money’); In re Nexium, 968 F Supp 2d at 392 (‘Nowhere in Actavis did
the Supreme Court explicitly require some sort of monetary transaction
to take place’; Actavis did not ‘limit … its principles to monetary-based
55 In re Lamictal, 2014 WL 282755, at *6-7 (limiting Actavis to reverse
payments of money; finding that brand name companies agreement
not to sell an authorised generic during the first filer exclusivity period
was not subject to antitrust challenge) (distinguishing In re Nexium and
In re Liptor).
56 Actavis, 133 S Ct at 2237. See, eg, In re Nexium (Esomeprazole)
Antitrust Litig, 2014 WL 585827 (D Mass, 12 February 2014)
(dismissing action where plaintiff failed to present an economic
evaluation of the payment, including a reasonable royalty analysis).
57 See, eg, In re Androgel Antitrust Litig (No. II), No. 1:09-MD-2084-TWT,
2014 WL 16000331 (ND Ga, 21 April 2014); In re Nexium, 968 F Supp
2d at 398.
58 No. 6:10-cv-473, 2013 WL 4046225 (ED Tex, 6 August 2013).
59 Id at *2.
60 Id at *25.
62 Id at *16.
65 Nos. 1:13-cv-00009-RGA, 1:13-cv-00010-RGA, 2014 WL 2206218 (D
Del, 28 May 2014).
66 Id at *2.
67 Id at *3.
69 No. C10-1823JLR, 2013 WL 2111217 (WD Wash, 25 April 2013).
70 Id at *1–2.
71 Id at *7, *10, *12, *18.
72 Id at *18.
73 Id at *12, *18–19.
74 Id at *12, *20, *73, *86.
75 Id at *18–20.
76 Id at *51.
77 Id at *18–20, *56, *58.
78 Id at *27, *63.
79 Id at *85, *90.
80 Id at *24, *32, *34–36, *40.
81 Id at *19, *85.
82 Id at *18–19.
83 Id at *69, *71–72.
84 Id at *69.
85 Id at *20, *90.
86 Id at *75.
87 Id at *82–83, *89.
88 Id at *75, *82, *88.
89 Id at *80.
90 Id at *74–75, *88–89.
91 Id at *81, *89.
92 Id at *4.
93 Microsoft Corp v Motorola Inc, No. C10-1823JLR, 2013 WL 6000017,
at *2 (WD Wash, 12 November 2013).
94 No. 11C 9308, 2013 WL 5593609 (ND Ill, 3 October 2013).
95 Id at *1.
96 Id at *12.
97 Id at *6.
98 Id at *14.
99 Id at *8.
100 Id at *7–8.
101 Id at *20.
103 Id at *36.
104 Id at *3, *43–45.
US: IP AND ANTITRUST
Susan E Foster
Perkins Coie LLP
Susan E Foster is the firm-wide chair of the Perkins Coie antitrust,
consumer protection and unfair competition practice, and has 25
years of experience counselling and litigating antitrust, unfair com-
petition and intellectual property matters with the Federal Trade
Commission, the Department of Justice, state attorneys’ general
foreign competition authorities and private parties. She routinely
represents clients in merger clearance, conspiracy, monopolisation,
price discrimination, patent infringement, false advertising, trade
secret, trade association, joint venture, distribution and licensing
matters across a range of industries including aeronautics, computer
software, semiconductor, medical equipment, food processing and
general retail, manufacturing and entertainment.
Shylah R Alfonso
Perkins Coie LLP
Shylah R Alfonso is a partner in the commercial litigation group.
She focuses her practice on antitrust and consumer protection
counselling and litigation, intellectual property litigation, antitrust
clearance for mergers and acquisitions, class action and complex
commercial litigation. She has represented clients on a variety of
antitrust matters, such as litigation matters in front of the Federal
Trade Commission, as well as bringing and defending antitrust
claims in state and federal courts. She also provides counselling
and training to companies on the antitrust aspects of joint ventures,
pricing, distribution agreements, IP licensing and acquisitions, trade
association participation, involvement in standard-setting organisa-
tions, and other transactions or trade activities. Shylah works with
clients involved in various industries, including telecommunica-
tions, semiconductor, computer software, retail and the internet.
Representative clients have included TriQuint Semiconductor, Intel,
REI and Costco.
Barry J Reingold
Perkins Coie LLP
Barry J Reingold is a partner in Perkins Coie’s Washington, DC,
office, with more than 25 years of experience as an antitrust and
consumer protection litigator and counsellor. His practice includes
cases involving antitrust, mergers and acquisitions, false advertis-
ing and privacy matters in courts and before the United States
Department of Justice and the Federal Trade Commission. He
also litigates intellectual property cases in court and before the
United States Patent and Trademark Office. A former assistant to
the director of the FTC’s Bureau of Competition, he joined Perkins
Coie in 1981. He is a graduate of Amherst College and the George
Washington University Law School.
Perkins Coie LLP
1201 Third Avenue
Seattle, Washington 98101
Tel: +1 206 359 8000
Fax: +1 206 359 9000
700 Thirteenth Street NW
Washington, DC 20005-3960
Tel: +1 202 654 6200
Fax: +1 202 654 6211
Susan E Foster
Shylah R Alfonso
Barry J Reingold
With more than 900 lawyers in 19 offices across the United States and Asia, Perkins Coie is
recognised for its technology practice and represents great companies across a wide range of
industries and stages of growth – from start-ups to Fortune 100 corporations. Our lawyers and
respective practices have been ranked in numerous publications, from Chambers USA and US News
Best Law Firms, to Legal 500 and Corporate Counsel Magazine.
The firm’s more than 400 litigators are noted for their extensive experience in state and federal
jurisdictions and at every appellate level including the US Supreme Court. The firm includes 13
fellows in the American College of Trial Lawyers.
Our antitrust attorneys have experience representing manufacturers, retailers, distributors, and
research and development companies in class action and other litigation, governmental proceedings
or antitrust counselling with a particular focus on the issues arising from the intersection between
intellectual property and antitrust. If a merger, acquisition or other governmental investigation is
pending, we have the resources, breadth and experience to assist clients nationwide in matters
involving the Department of Justice, Federal Trade Commission or state attorneys general. We are
also adept at providing sound and experienced advice to companies to ensure they are in compliance
with domestic and foreign antitrust and trade regulations laws during every business initiative and
decision. We help our clients meet their business needs and strategies while minimising the risks
raised by ever-evolving competitive conditions.
The Perkins Coie patent practice has more than 175 patent attorneys and agents that support
the prosecution and litigation needs of our clients in the software, wireless, semiconductor, internet
and life sciences areas. More than 100 members of the group have science degrees, including more
than 50 with electrical engineering, computer engineering or computer science backgrounds. Few
firms, if any, in the country have our expertise plus such a deep technical bench.
Our mergers and acquisitions attorneys handle a wide variety of domestic and cross-border
transactions, including strategic acquisitions and divestitures, joint ventures, leveraged buyouts
and going private transactions. With 100 M&A attorneys, we have the depth and resources to
manage the most demanding transactions.
1 The Antitrust Review of the Americas 2015
THE ANTITRUST REVIEW OF THE AMERICAS 2015 ISSN 1468-7054
ResearchStrategic Research Partner of the
ABA Section of International Law
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