Not complementary -- expanding antitrust law in IP would crush patent rights.

The previous two Parts examined the existing sources of regulatory authority in the patent context--the PTO, the ITC, and the Federal Circuit--to create a hierarchy of potentially anticompetitive patent activities, categorizing them based on the degree to which they are already under patent-specific supervision. Where that alternative supervision exists, as the Credit Suisse Court recognized, the benefits of overlapping antitrust intervention are marginal. Of equal--if not greater--concern, however, are the costs of overlapping antitrust intervention.

The bulk of the Court's analysis in Credit Suisse was dedicated to calculating those costs in the securities context. Due to the "fine, complex, detailed line" separating activity the SEC permits and activity the SEC forbids, the "contradictory inferences" that might arise from identical behavior, the "need for securities-related expertise" in adjudication, the "risk of inconsistent court results," and the danger of permitting plaintiffs to "dress what is essentially a securities complaint in antitrust clothing," the Credit Suisse Court determined that "antitrust courts are likely to make unusually serious mistakes" where they intervene with securities law. 193 As a result, the Court stated, permitting antitrust law and securities law to overlap would likely "produce conflicting guidance, requirements, duties, privileges, or standards of conduct." 194 This Part extends that analysis to the patent context where the costs are equally substantial. Each of the above concerns is just as pressing in the patent sphere--if not moreso.

[*451] A. The Fine Lines of Patent Law

In Credit Suisse, the Court characterized the line separating permissible and impermissible securities activity as "fine, complex, [and] detailed." 195 Accordingly, allowing antitrust and securities law to apply simultaneously would be particularly likely to produce conflicting guidance and requirements. The Court illustrated this dilemma:

It will often be difficult for someone who is not familiar with accepted syndicate practices to determine with confidence whether an underwriter has insisted that an investor buy more shares in the immediate aftermarket (forbidden), or has simply allocated more shares to an investor willing to purchase additional shares of that issue in the long run (permitted). And who but a securities expert could say whether the present SEC rules set forth a virtually permanent line, unlikely to change in ways that would permit the sorts of . . . conduct that it now seems to forbid? 196

Patent law is similarly replete with fine doctrinal lines separating the permissible and the forbidden. To provide just a few key examples, the frameworks governing patent misuse, exhaustion, inequitable conduct, and contributory infringement are highly complex and continue to develop and evolve.

As explained in Part III, patent misuse and exhaustion are equitable defenses to infringement. 197 The former applies where a patentee "impermissibly broadened the 'physical or temporal scope' of the patent grant with anticompetitive effect." 198 The patent then becomes "unenforceable until the misuse is purged." 199 The latter applies where a patented item has been "lawfully made and sold," after which "there is no restriction on [its] use to be implied for the benefit of the patentee." 200 An infringement claim based on downstream use or sale will therefore be dismissed as a matter of law. 201 The Federal Circuit, reviewing these defenses, 202 is forced to thus grapple with complex, "murk[y]" questions. 203 In terms of patent misuse: What is outside [*452] the scope of any given patent grant? Has this particular patent been "leveraged" as part of the alleged anticompetitive scheme? How should courts analyze and resolve portfolio--rather than individual patent--misuse? 204 In terms of exhaustion: Does the article sold sufficiently embody the "essential features" of the patent? 205 To what extent can parties contract around exhaustion? 206 As a result, there is already "foreseeable polymorphism" in the doctrines of patent misuse and exhaustion, and "unforeseeable strains of potential misbehaviors" are likely to emerge. 207 Allowing generalist antitrust courts to intervene would only produce greater uncertainty and, ultimately, conflicting and inconsistent results.

Inequitable conduct is another equitable defense to patent infringement. 208 To successfully assert a claim of inequitable conduct, the accused infringer must show that the patentee failed to disclose information, such as prior art, in its patent application. 209 The patentee must also have "specific intent to deceive the PTO," such that the "PTO would not have granted the patent but for [the] failure to disclose." 210 The remedy, as expressed by the Federal Circuit, is the "'atomic bomb' of patent law": "inequitable conduct regarding any single claim renders the entire patent unenforceable." 211 The result is a fine line to adjudicate. Because the Federal Circuit has determined that "intent and materiality are separate elements . . . that . . . should not be put on a sliding scale with one another," the crucial--and highly technical--question of whether or not the patentee's alleged deception was the "but for" cause of the PTO's grant must be addressed fully in every case. 212 Again, inconsistency and uncertainty would mar this already complex doctrine if antitrust courts were left to adjudicate these claims.

[*453] As opposed to direct infringement, contributory infringement covers situations where a party does not sell the patented article or practice the patented process, but instead

offers to sell or sells . . . a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use . . . . 213

For a plaintiff's claim of contributory infringement to succeed, the plaintiff must demonstrate that the defendant "knew that the combination for which its components were especially made was both patented and infringing," and that the "components have 'no substantial noninfringing uses.'" 214 In practice, contributory infringement claims can be incredibly complex, not only in technical terms--understanding how components may be used together or separately in infringing or noninfringing ways--but doctrinally as well. For example, there is a delicate line between raising a successful contributory infringement claim and impermissibly trying to extend the scope of one's patent over unpatented devices--potentially triggering misuse. 215 With the risk of a finding of unenforceability on one side and the possibility of rampant third-party infringement on the other, the costs of antitrust courts generating conflicting guidance or contributing to uncertainty in this doctrine would be quite high.

Altogether, the degree of complexity associated with patent doctrines, such as misuse, exhaustion, inequitable conduct, and contributory infringement, weigh in favor of preemption under Credit Suisse's analysis. If permitted instead to overlap, there is a significant risk that patent law and antitrust law would produce conflicting guidance and requirements. Just as generalist antitrust courts would struggle to distinguish permissible and forbidden securities arrangements--and fail to accurately forecast potential changes in securities law 216--they would struggle with the equally delicate and fine lines of patent doctrine.