Section of Antitrust Law, American Bar Association
Settlements between S competitors in patent cases raise important and sensitive antitrust issues. Patent settlement agreements may create or maintain a monopoly in technology or innovation markets and may also effectuate a monopoly or cartel in related goods markets. Indeed, absent the patent rights, certain terms of patent settlement agreements may be per se antitrust violations. Further, anticompetitive patent settlements-unlike most antitrust conspiracies-are enforceable in court, providing the parties with an effective means of preventing the cheating that is the bane of cartels. Thus, the antitrust risk that a settlement agreement may operate as a disguised cartel has long been recognized.
Joseph F. Brodley & Maureen O'Rourke,
Patent Settlement Agreements: Preliminary Views
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2115