Antitrust and Unfair Competition Law
Competition: Fall 2021, Vol. 31, No. 2
Content
- A Litigator's Perspective On the Evolving Role of Economics In Antitrust Litigation
- An Economic Perspective On the Usefulness of the Consumer Welfare Standard As a Guiding Framework For Antitrust Policy
- Chair's Column
- "COMPETITION POLICY IN ITS BROADEST SENSE": CAN ANTITRUST ENFORCEMENT BE A TOOL TO COMBAT SYSTEMIC RACISM?
- Editor's Notes
- Fairness Requires the Elimination of Forced Arbitration
- Jeld-wen: Opening the Door To Private Merger Challenges?
- Masthead
- On Being a Transwoman Lawyer...
- Patents and Antitrust In the Pharmaceuticals Industry
- The Consumer-welfare Standard Should Cease To Be the North Star of Antitrust
- The Evolution of Antitrust Arbitration
- Ten Years Post-therasense: Closing the Gap Between Walker Process Fraud and Inequitable Conduct
TEN YEARS POST-THERASENSE: CLOSING THE GAP BETWEEN WALKER PROCESS FRAUD AND INEQUITABLE CONDUCT
By Anne Y. Brody and Elisabeth Ponce1
I. INTRODUCTION
Prior to 2011, inequitable conduct (a defense to a patent infringement claim) was considered and analyzed as a lesser charge than Walker Process fraudâan antitrust claim alleging unlawful monopolization through the enforcement of a patent obtained by fraud on the Patent Office. That distinction began to change, in practice, in 2011, when the Federal Circuit responded to an "absolute plague" of "charging inequitable conduct in almost every major patent case" by issuing Therasense, Inc. v. Becton, Dickinson & Co.2 The post-Therasense decade has crystallized that, although minor differences remain in the application of the two charges, the showing required for proving inequitable conduct and the fraud component of Walker Process liability "seems to be ‘nearly identical.’"3 Indeed, today’s courts largely treat Walker Process and inequitable conduct claims equivalently. The continual harmonization of these two charges recently culminated in Complete Genomics, Inc. v. Illumina, Inc., where the court suggested that a finding of inequitable conduct in an earlier patent case may have preclusive effect and may narrow or focus the issues in a later, separate antitrust Walker Process case.4 This emerging trend will likely have a significant impact in future patent and antitrust cases.
This article discusses recent case developments that illustrate the continual harmonization of the inequitable conduct and Walker Process fraud charges, and it analyzes both parties’ arguments and the courts’ opinions. Lastly, it examines whether the doctrine of infectious unenforceability has any role to play in proving Walker Process fraud and other antitrust theories.