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In 2010, firms operating in the United States found themselves in lawsuits initiated by nonpracticing entities (NPEs) more than 2,600 times. That is a five-fold increase over 2004. Is this [...]

TABLE OF CONTENTS INTRODUCTION I. A MODEL OF PATENT EXAMINATION ERRORS A. Introduction to the Model B. The Source of Errors C. The Social Cost of Examination Errors II. STRATEGIC [...]

There is property, and then there is property. Scholars hotly debate whether intellectual property is truly property and which lessons learned about property rights in land should be applied to [...]

Antitrust law has long been mindful of the danger that firms may misuse their patents to facilitate price fixing. Courts and commentators addressing this danger have assumed that patent-facilitated price fixing occurs in a single market. In this Article, we extend conventional analysis to address firms' patent misuse to facilitate price fixing across multiple products lines. By doing so, we expose gaps in existing agency enforcement and scholarly proposals for reform. Important legal tests that make sense in the single market setting do not carry over to the context we call serial collusion, where certain offenders engage in repeat collusion across product lines. This Article argues that there is an urgent need to recast these tests to address serial collusion of the sort that prevails in the chemicals, auto parts and electronics industries. To support this argument, we develop empirical evidence consistent with the possibility that serial colluders in the chemical industry acquired and used patents to support their collusion, either directly to coordinate and monitor output and pricing or indirectly to deter new firm entry by erecting patent thickets as a barrier to entry. Throughout this Article, we describe the flaws of current antitrust doctrine when it comes to assessing patents and price fixing, suggest doctrinal improvements, and provide guidance to antitrust enforcers about how to better understand and combat serial collusion facilitated by patents. [ABSTRACT FROM AUTHOR]

The article focuses on efficient allocation of patent damages liability within the supply chain and deterioration of patent notice and the related rise of inadvertent patent infringement and patent assertions by non-practicing entities. It mentions patent litigation and settlement bargaining rather than ex ante licensing and avoidance of infringement suits. It also mentions insurance agreements allow parties to shift control of settlement and defense in patent litigation.

The article presents a speech by Michael J. Meurer, professor of law at Boston University School of Law, presented at the Boston University Law Review Symposium on Notice and Notice Failure in Intellectual Property Law. Topics of the speech include bargaining failure and failure to bargain ex ante, publicly traded firms that sue each other for patent infringement and bargaining provides the main benefit of avoiding hold up costs.