This conference will present experienced practitioners, policy
makers and leading academics in antitrust and intellectual
property law in a discussion of the developing issus in this
important and ever-changing area of antitrust practice.
PROGRAMS SPONSORED BY THE
INTELLECTUAL PROPERTY COMMITTEE AT THE ANTITRUST SECTION SPRING
MEETING, WEDNESDAY, MARCH 31, 2004 TO FRIDAY APRIL 2, 2004
Thursday, April 1, 2004
8:15 - 9:45 am Intellectual Property Committee Program: Apex,
Nadir or Neither? Traffic Jams at the Intersection of Antitrust
and Intellectual Property
Materials
Traffic Jams at the Intersection of
Antitrust and Intellectual Property
Standard Setting and Patent Pools
Materials
by M. Howard Morse
Drinker Biddle & Reath LLP
Washington, D.C.
Materials
by Frances Marshall
Special Counsel for Intellectual Property
Antitrust Division
U.S. Department of Justice
Intellectual Property Committee
This panel will evaluate the most significant antitrust/IP
developments over the past four years at the agencies and
in the courts. The discussion will include: (1) perspective
on staff findings and recommendations from the FTC/DOJ Hearings
on Competition and Patent Law and Policy, and related staff
reports; (2) examination of issues arising from recent government
and private cases involving settlements of intellectual property
litigation, including settlements in the context of mergers,
failing firms and Hatch-Waxman settlement cases; and (3) examination
of issues involving dominant firms and the exploitation of
intellectual property rights. The panel would also discuss
how some of the more significant doctrinal issues relating
to IP/antitrust will be or should be resolved, with a focus
on how these developments at the agencies and in the courts
are likely to affect antitrust legal doctrine, policy, and
practice.
3:15 -5:00 pm Licensing of Intellectual Property: A Practical
Perspective on American and European Approaches
Sherman Section One, International Committee and Intellectual
Property Committees
The licensing of intellectual property rights is an increasingly
important component of the global economy, but the antitrust
laws that apply to IP licenses vary across regions. In the
United States the IP guidelines adopt a case specific approach
that applies the rule of reason in most situations. This approach
helps to avoid overly-broad prohibitions that might bar beneficial
conduct, but it also can increase uncertainty and can be more
burdensome to administer. The European Commission has followed
a more categorical approach as exemplified by the "black"
and "gray" list and the Technology Transfer Block
Exemption. The panel will examine how the antitrust laws in
the U.S. and the EU apply. In particular, the program will
identify potential pitfalls for practitioners that arise due
to the different competition rules. And the program will explore
the relative cost and benefits of the U.S. and European approaches.
Moderator: Thomas O. Barnett
Covington & Burling
Speakers: Makan Delrahim
Department of Justice
Richard Gilbert
University of California
Thomas Mueller
Wilmer, Cutler & Pickering
Luc Peeperken
DG Competition
Vanessa Turner
Freshfields Bruckhaus and Deringer LLP
American Bar Association
Section of Antitrust Law
Health Care, Intellectual Property, Sherman Act Section One
and Federal Trade Commission Committees
Present
A Brown Bag Lunch
The Antitrust Risks of Pharmaceutical Settlements: Recent
Developments
One of the most significant areas of pharmaceutical antitrust
litigation involves settlements between brand name and generic
firms. In the past few months there have been several decisions
addressing the complex issues in these cases. Some of the
issues that will be addressed include the mode of analysis
-- per se or rule of reason, the role of patent validity,
showing antitrust injury, the Noerr-Pennington defense, and
demonstrating competitive harm
March 5, 2004
Time: 12:00 - 2:00 pm
MODERATOR: Will Tom, Morgan Lewis
SPEAKERS: Markus Meier, Federal Trade Commission
Merril Hirsh, Ross Dixon and Bell
Mark Kovner, Kirkland & Ellis
Sean Gates, Munger Tolles & Olson LLP
Location: Hogan & Hartson Conference Center
Please RSVP by e mail to Lisa Ellis, White & Case, lellis@whitecase.com
and indicate whether you are attending in person or by dial-in
number. The dial-in number will be provided 3 days before
the program.
Recent Developments in the Estimation of Damages
In Antitrust/Intellectual Property Cases: The Use of Economic
Simulation Models
December 11, 2003
12:15 to 2:00 pm
Spring Meeting Programs
THURSDAY, APRIL 3, 2003
1:30 - 5:00 pm Antitrust Enforcement: Cutting Edge Lessons
From the Pharmaceutical -Industry
Intellectual property and regulatory strategies in the pharmaceutical
industry have been the focus of intense antitrust scrutiny
from the enforcement agencies and the private bar in recent
years, including at least five enforcement actions filed by
the Federal Trade Commission and dozens of lawsuits filed
by private parties and/or state attorneys general alleging
that pioneer manufacturers used such strategies to monopolize
markets for a variety of pharmaceutical products. This program
will explore how these cases have contributed in unique and
important ways to the development of antitrust law in key
areas such as market definition, Noerr-Pennington immunity,
the use of intellectual property, the standing of indirect
purchasers and class certification.
Panel 1: The Pharmaceutical-Antitrust Landscape
Program Cochair: David A. Balto
White & Case LLP
Washington, DC
Program Cochair and: George G. Gordon
Moderator Dechert
Philadelphia, PA
Participants: Meredyth Smith Andrus
Office of the Attorney General
State of Maryland
Baltimore, MD
Susan A. Creighton
Deputy Director, Bureau of Competition
Federal Trade Commission
Washington, DC
J. Mark Gidley
White & Case LLP
Washington, DC
Panel 2: Hot Button Issues
Moderator: Phillip A. Proger
Jones, Day, Reavis & Pogue
Washington, DC
Markus H. Meier
Bureau of Competition
Federal Trade Commission
Washington, DC
Richard L. Schwartz
Office of the Attorney General
State of New York
New York, NY
Daniel A. Small
Cohen, Milstein, Hausfeld & Toll, PLLC
Washington, DC
FRIDAY, APRIL 4, 2003
8:15 - 9:45 am Intellectual Property Committee Program
Shifting Terrain: The Increasing Reach of Antitrust Law and
Misuse Doctrine in the Licensing of Intellectual Property
This program will examine recent developments in the enforcement
agencies and in private litigation arising from licensing
agreement restrictions. Panelists will discuss the FTC/DOJ
hearings on antitrust and intellectual property and recent
significant enforcement and judicial decisions involving antitrust
law, patent misuse, and copyright misuse.
Program Chair and: Michael S. McFalls
Moderator Jones, Day, Reavis & Pogue
Washington, DC
Presenters: Joseph Kattan
Gibson, Dunn & Crutcher
Washington, DC
Gail F. Levine
Office of Policy Planning
Federal Trade Commission
Washington, DC
Frances E. Marshall
Antitrust Division
U.S. Department of Justice
Washington, DC
May 3-4, 2001 Intellectual
Property and Antitrust: Navigating the Minefield
The Rittenhouse Hotel
Philadelphia, Pa
Day One: Thursday May 3, 2001
8:00 am - Welcome and Introductory Remarks
Ky P. Ewing
Chair, Section of Antitrust Law
George G. Gordon
Program Chair
8:15-9:45 am
News From The Trenches: Developing Trends In Strategies To
Maximize The Value of Intellectual Property Assets
Richard T. Collier, Sr. VP and General Counsel, Pharmacia
Corporation
Summanth Addanki, National Economic Research Associates
David A. Balto, Bureau of Competition, Federal Trade Commission
Marshall C. Phelps, Spencer Trask Intellectual Capital Company,
LLC
10:00-11:15 am
Mapping the Terrain: Key Principles Related To The Intersection
of Antitrust and Intellectual Property Law
Michael S. McFalls, Jones Day Reavis & Pogue
Jay S. Simon, Asst. Chief Attorney, ExxonMobil Corporation
Elizabeth Weisswasser, Covington & Burling
11:30 am-1:00 pm
The Antitrust Risks Associated With Building An Intellectual
Property Portfolio
Eric I. Harris, Associate General Counsel, Johnson & Johnson
Mary Jean Moltenbrey, Antitrust Division, US Department of
Justice
M. Howard Morse, Drinker Biddle & Reath
1:00-2:15 pm
Luncheon Address by Commissioner Thomas B. Leary, Federal
Trade Commission
2:30-4:00 pm
Navigating the Antitrust Risks Associated With Licensing
Restrictions, Package Licensing, Cross-Licensing and Patent
Pools
Susan A. Creighton, Wilson Sonsini Goodrich & Rosati
Jonathan I. Gleklen, Arnold & Porter
Bruce S. Schneider, Corporate Counsel, Lucent Technologies
4:00-5:30 pm
The Intellectual Property As Gatekeeper: Refusals To Deal
After Xerox, Kodak, Intel and PrimeTime 24
Jonathan S. Franklin, Hogan & Hartson
Debra A. Valentine, General Counsel, Federal Trade Commission
Daniel M. Wall, Latham & Watkins
Day Two: Friday May 4, 2001
8:30-10:00 am
Enforcing Intellectual Property: The Limits of Noerr And
The Risks of Settlement
Molly S. Boast, Director, Bureau of Competition, Federal
Trade Commission
James B. Kobak, Jr., Hughes Hubbard & Reed
Willard K. Tom, Morgan Lewis & Bockius
10:15-11:45 am
Is There Life After A Patent?: Strategies To Maximize The
Value Of Product Life-Cycles When Intellectual Property Expires
James P. Denvir III, Boies, Schiller & Flexner
Susan S. DeSanti, Federal Trade Commission
George G. Gordon, Dechert
The Interface
Between Antitrust and Intellectual Property: Lessons from
the Pharmaceutical Industry
THURSDAY, MARCH 29, 2001 8:15 - 9:45 am
Recent FTC pharmaceutical cases provide a good illustration
of how antitrust and intellectual property issues intersect.
The pharmaceutical industry is particularly sensitive to patent
expirations as a result of the lengthy time periods required
for clinical development and regulatory approval. Innovative
firms confronting patent expiration engage in various competitive
strategies in an attempt to extend the product life cycle
including alleged anti-competitive agreement with potential
generic competitors in the generic alleged market. The panel
will examine recent FTC cases involving Aventis, Andrex, Abbott
Laboratories and Geneva Pharmaceuticals as well as other reported
ongoing Investigations. This program will be co-sponsored
by the Health Care Industry Committee.
Mark J. Horoschak
Womble, Carlyle Sandridge & Rice PLLC
Charlotte, NC
Presenters:
Richard Feinstein
Assistant Director of Health Services and Products
Federal Trade Commission
Washington, DC
Carol J. Gillespie
Senior Vice President
General Counsel and Secretary
IVAX Corporation
Miami, FL
Louis Solomon
Solomon, Zauderer, Ellenhorn, Frischer & Sharp
New York, NY
Remedies in Antitrust
Cases: Where The Rubber Meets the Road
THURSDAY, MARCH 29, 2001 3:30 – 5:00 pm
This program, which will be co-sponsored by the Intellectual
Property Committee, the Clayton Act Section 7 Committee and
the Sherman Act Section 2 Committee, will address the complex
remedies issues that arise in both merger and non-merger antitrust
cases. The program will explore how the federal enforcement
agencies and courts translate antitrust liability and competitive
effects into real-world restrictions and restructuring. The
Microsoft case has brought to the forefront the difficulty
of shaping appropri-ate injunctive relief. But Microsoft
is not the only recent case in which these tensions have been
present. FTC Chairman Robert Pitofsky has advocated more rigorous
standards in the sorts of divestitures and other "fix it first"
solutions the agencies will accept in merger matters.
Over the years, both the FTC and DOJ have had a number of
experiments with licensing as a less intrusive alternative
to divestiture to resolve competitive concerns, with mixed
success in such cases as Rhone-Poulenc, Institut
Merieux, Boston Scientific, and Computer Associates.
Despite recent "get-tough" talk, and its impact on such cases
as BP-Amoco-Arco, and the Chronicle/Hearst litigation,
the government is still accepting complex licensing remedies
as evidenced by the FTC's recent Ceridian consent.
The program will address such questions as:
What are the advantages and drawbacks of the various
available remedies? When should they be used? What factual
showing should be made in choosing one over another?
Should the standards be different in conduct and merger
cases? To what extent should remedies in conduct cases
take into account future market effects?
Whose call is it?
What sorts of "proofs" or "links" need to be established
between the offending conduct or the deal and the "fix"?
How should "success" be measured in this area? Over
time?
What is the role of consumers in fashioning relief?
Competitors? Vendors or co-developers?
Session Chair:
M. Howard Morse
Drinker, Biddle & Reath LLP Washington, DCSession Co-Chair and Moderator:
Karen E. Silverman
Latham & Watkins San Francisco, CA
Willard K. Tom
Morgan, Lewis & Bockius LLP
Washington, DC
The Honorable Vaughn R. Walker
United States District Court
for the Northern District of California
San Francisco, CA
The Intellectual Property
Guidelines: What Have We Learned in the Last Five Years?
WEDNESDAY, MARCH 28, 2001 10:00 - 11:15 am
Since the 1995 IP Guidelines, numerous matters at both the
Federal Trade Commission and US Department of Justice have
raised intellectual property issues: Microsoft, GE, DVD and
MPEG-2, Intel, VISX, Ciba-Sandoz, Abbott Geneva, and Hoechst-Andrx,
to name a few. Have the agencies followed the Guidelines?
Have the Guidelines influenced the courts? What does this
track record portend for the future?
Program Chair:
Willard K. Tom
Morgan, Lewis & Bockius, LLP
Washington, DC
