The old IP/antitrust axis, revived

Michael Atkins examines a recent decision addressing the possibility of “restraint of trade by trademark.”

The supposed nexus of antitrust and intellectual property always takes up a chapter in the textbook. Like the weather, everyone talks about it but no ever actually does anything with it. The case Michael reports on presents an interesting fact pattern, and rather unusual, and for that reason could be the case (if it were to proceed to trial and a final, published opinion) that could spark interest in this topic again — but probably on a limited basis:

Third-party defendant National Licensing Association, LLC, is a for-profit company whose purpose is to enforce the plant patent and trademark rights of others at standardized rates and to share proceeds of its enforcement efforts with its plant nursery members. . . .

National Licensing’s membership is comprised of 18 plant nurseries who otherwise compete with each other. Each nursery entered into a Plant Patent and Trademark Collection Agreement with National Licensing. In this agreement, each nursery agreed to assign to National Licensing its plant patent and trademark enforcement rights in return for a percentage recovery of the proceeds of National Licensing’s enforcement activities on behalf of all National Licensing members.

MONY’s motion argued … that by amassing the patent and trademark rights of individual plant nursery owners under the control of National Licensing, National Licensing gained tactical leverage in obtaining standardized licensing fees and recoveries from agricultural lenders. As a result of these tactics, MONY argued there was an increased unwillingness of agricultural lenders to grant loans, which increased the cost of such loans.

Hence, I assume, the anticompetitive effect. I’ll say this: Intellectual property rights are being treated by businesses, and certainly the courts, today very much like tangible assets. Increased judicial scrutiny at how the manipulation of these assets might lead antitrust problems would probably be a useful judicial counterweight to the IP-owner bias so consistently present in today’s opinions — both from a liability standpoint and as a balance to the gross imbalance in both litigating power and remedies that currently favors Big IP.

UPDATE: Did I say “big”? It doesn’t get bigger than Texas, does it?

email

Ron Coleman

I write this blog.