Patent transactions increasingly involve antitrust issues

May 8, 2012 Patent transactions of increasing value are attracting the attention of antitrust regulators, necessitating the use of antitrust experts in a field that previously had little need of them.

When Microsoft Corp sold part of AOL's patent portfolio to Facebook Inc last week for just over half a billion dollars, the firm was advised by a team of IP and corporate lawyers, and also hired Covington & Burling's Miranda Cole in Brussels to advise on antitrust issues, along with a team from Cadwalader, Wickersham & Taft in Washington DC, led by antitrust head Charles "Rick" Rule.

The issues in this field are complex, arising from a natural tension between the monopoly rights conferred on inventors by patent laws and the antitrust imperative that patent’s can’t be used to put competitors out of business. So far, US and European regulators have required large acquisitions to go through an approval practice, but they haven’t stopped any from going ahead.

The article addresses ome of the fascinating issues around standard/essential patents, which all players have to either license or infringe if they are to participate in a given industry, such as a patent that covers how smartphones connect to a wireless network.

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