Wednesday, January 10, 2007
Posted by Shubha Ghosh
Professor Christopher Leslie of Chicago Kent Law School has uploaded an interesting paper on SSRN advocating use of antitrust law to challenge the licensing of invalid patents. Professor Leslie specifically questions the requirement under current law that the patent holder must enforce an invalid patent in order to state a claim for a Sherman Act violation.
The paper is timely in light of the decision by the Supreme Court on January 9 in the Medimmune v Genentech case. The slip opinion is linked below. In Medimmune, the Court held that a licensee had standing under Article III and the Declaratory Judment Act to challenge the validity of a patent without repudiating the license. The decision is an important, and controversial, one for licensing practice and for the existing institutional arrangements for challenging patent validity. Professor Leslie's proposal suggests yet another mechanism for insuring the integrity of the patent system.