Ok I concede that lawyers are great at making (or at least trying) to make their clients and others believe that the sky is falling, so that you better retain them to advise you or else the world (and their clients’ businesses) will surely end. We have all heard many, many pitches by surely very smart, but possibly rather self-serving counsel, warn of the risks of not doing X, Y or Z.
Having said that, I came across a rather good recently published note today by David Balto talking about the “Dozen Times to Call Your Antitrust Lawyer” [subtitle: competition/antitrust and IP law issues to watch out for – my phrase]. While clearly also a call to drum up business, this note I thought was really rather good.
This note caught my eye because it is both true and well-written and sets out the following “Dozen Times” to think about calling your competition/antitrust counsel to discuss potential competition/antitrust law issues (in addition to intellectual property law considerations): (1) mergers, acquisitions or joint ventures, (2) your competition (rivals) are entering into a merger or acquisition, (3) an acquisition of a company with potentially competing R&D product, (4) enforcing IP rights, (5) buying IP with attached commitments, (6) patent litigation settlements, (7) dealing with standard setting organizations, (viii) selling unpatented products or services in conjunction with IP, (9) structuring licensing arrangements, (10) challenging regulatory filings, (11) entering into a patent pool or (12) introducing new products and product designs.
Introduction:
“The intersection of antitrust law and intellectual property law is at the core of many of the most important and high stakes litigated cases and enforcement efforts by the antitrust agencies. The antitrust enforcement agencies – the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) in the United States and the European Commission – spend a vast amount of their resources in bringing cases involving the exercise or acquisition of intellectual property (IP) rights. Some of the most high-profile competitive disputes involve both IP and antitrust law. Prudent IP lawyers know the value of securing antitrust advice, especially when dealing with potential transactions or potential litigation. This article outlines when IP lawyers should seek out the advice of their antitrust colleagues in order to avoid antitrust pitfalls.”
For a copy of this recent note on the intersection of competition/antirust and IP laws see: A Dozen Times to Call Your Antitrust Lawyer.
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