The Intersection of Patent Law and Competition Policy

Tags: Content/IP / Technology Policy

To view the video recording of this event, click here.

For a report summarizing the conference written by Reginald Nubine and Nick Venetz, Click Here.

The Sherman Antitrust Act is often called a “common law” statute, with courts expected to interpret broad phrases—restraint of trade, for example. The Patent Act, which is reasonably sparse on statutory language, is increasingly subject to contestable and very significant judicial interpretations of its key provisions. In this conference, we will evaluate how competition policy and patent law intersect, and the role of courts in this process.

In the America Invents Act, the U.S. Congress made the decision to focus on the institutional arrangements of patent law, focusing intently on how the U.S. Patent and Trademark Office (PTO) operates, with little focus on substantive patent law doctrines. This decision reflects the strategy of allowing the courts—with the aid of guidance from the PTO—to develop the substantive rules of patent law. With regard to the important questions of the breadth of patents—notably, whether business methods, software, or human genes should be covered by patents-Congress is, in effect, authorizing, indeed requiring, the common law approach.

Common law jurisprudence has both institutional advantages and disadvantages. It is flexible, adaptive and well-suited to focus on the precise facts of a controversy. But, in a time when businesses often call for certainty in the content of governmental policy, it can also be unpredictable.

Our conference will examine both the institutional and substantive issues raised in the relationship between competition policy and patent law. First, we will consider the institutional roles of the PTO, the Federal Government, and the Judiciary. Second, we will look at the substantial doctrinal questions of patent law, examining the scope of patentability (under Section 101 of the Patent Act and other relevant policy measures) and other relevant policy levers available to courts under the Patent Act. Third, we will introduce competition law to the mix, asking how the two doctrines relate, conflict and can be conformed. The importance of this intersection is made plain by two simple propositions: Patent law creates lawful, if limited, monopolies. Competition law, especially Section 2 of the Sherman Act, prohibits certain actions to maintain a market monopoly. Finally, with the lessons of the three previous panels in mind we will take a close look at one specific industry – wireless communications, using it as an instructive case study in how different institutional actors are shaping the nature and dimension of competition in this sector.

To discuss all of the above, we will bring together a range of top-flight policymakers, academics, judges, and practitioners.


  • Phil Weiser
    Hatfield Professor of Law, University of Colorado Law School
Panel 1: The Institutional Roles of the PTO, the Federal Government, and the Judiciary in Shaping Patent Law
  • Michael Drapkin — Moderator
    Partner, Holland & Hart LLP
  • John F. Duffy
    Samuel H. McCoy II Professor of Law, University of Virginia School of Law
  • Philip Brimmer
    U.S. District Judge, District of Colorado
  • William Cavanaugh
    Partner, Patterson Belknap Webb & Tyler LLP
  • Judge Alan D. Lourie
    United States Court of Appeals for the Federal Circuit
  • Robert McManus
    Associate, United States Patent and Trademark Office
Panel 2: Scope of Patentability and Other Patent Policy Levers
  • Harry Surden — Moderator
    Professor of Law, University of Colorado Law School
  • Arti K. Rai
    Elvin R. Latty Professor of Law, Duke University School of Law
  • Eugene Kim
    Senior Patent Counsel, Zynga Inc.
  • Mindy Sooter
    Partner, WilmerHale
  • Judge Jimmie V. Reyna
    United States Court of Appeals for the Federal Circuit

Panel 3: Competition Policy and Patents
  • Phil Weiser — Moderator
    Hatfield Professor of Law, University of Colorado Law School
  • John Ryan
    Former Executive Vice President, Chief Legal Officer, Level 3 Communications, LLC
  • Scott Partridge
    Chief Deputy General Counsel, Monsanto
  • Greg Sivinski
    Assistant General Counsel, Antitrust Group, Microsoft
  • Terrell McSweeny
    Senior Counsel, Antitrust Division, United States Department of Justice
Panel 4: Case Study of the Changing Wireless Landscape: Patent Portfolio Development and Acquisition and Litigation
  • Jonathan Sallet — Moderator
    General Counsel, Federal Communications Commission
  • Chad Hilyard
    Chief IP Counsel, Rockstar Consortium US LP
  • Sharis Pozen
    Partner, Skadden, Arps, Slate, Meagher & Flom LLP
  • John L. Cooper
    Partner, Farella Braun + Martel LLP
  • Suzanne Michel
    Senior Patent Counsel, Google
  • Fabian Gonell
    Vice President, Legal Counsel, Qualcomm

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