[Random-bits] IPR and antitrust: ABA Antitrust Section Intellectual Property Committee Brown Bag September 20

[James Love]

Subject: ABA Antitrust Section Intellectual Property Committee Brown Bag S eptember 20
   Date: Wed, 13 Sep 2000 11:09:09 -0400
  From: "Morse, M. Howard ." <MORSEMH@dbr.com>
    To: AT-MEMBERS@MAIL.ABANET.ORG


THE ABA ANTITRUST SECTION INTELLECTUAL PROPERTY COMMITTEE announces the
first of a series of brown bags scheduled over the coming year to discuss
current developments at the intersection of antitrust and intellectual
property law, to be held Wednesday September 20 in Washington, DC.

The first brown bag will address pending cert. petitions in CSU, L.L.C. v.
Xerox Corp., and will feature as speakers Jonathan Franklin of Hogan &
Hartson, counsel to CSU, and Jonathan Gleklen of Arnold & Porter, counsel to
Xerox.

CSU argues the CAFC decision in this matter, which held that the ownership
of patents or copyrights immunizes unilateral conduct that may otherwise
constitute an antitrust violation (absent illegal tying, sham petitioning or
fraud), is in conflict with the 1997 Ninth Circuit decision in Image
Technical Services, Inc.  v. Eastman Kodak Co.  Xerox argues that the
unilateral right to exclude others is the essence of intellectual property,
that the Ninth Circuit decision in Image Technical Services was a departure
from precedent, and that since the CAFC has exclusive jurisdiction in cases
involving patent claims, its decision enhances uniformity of the caselaw.

FTC Chairman Robert Pitofsky has criticized the CAFC decision in this matter
as upsetting the "traditional balance" between intellectual property and
antitrust and an "unwise and unfortunate departure from the traditional
approach in this area" of the law.  In a June speech, Chairman Pitofsky
argued that the Federal Circuit's "sweeping language that exalts patent and
copyright over other considerations ... throws into doubt the validity of
previous lines of authority that attempted to strike a balance between
intellectual property and antitrust."  The discussion at the brown bag of
these issues should be interesting.

I attach copies of the cert. petition and opposition in .pdf format for
those interested.

   [snip]

-- 
James Love  mailto:love@cptech.org http://www.cptech.org
Consumer Project on Technology, P.O. Box 19367, Washington, DC 20036
voice 1.202.387.8030  fax  1.202.234.5176