Thomas Dillickrath, David Emanuelson, Dec 30, 2013
The right to seek injunctive relief is one of the bulwarks of U.S. law. The right to petition the government to redress grievances is fundamental to the legal system, and is expressly protected by the First Amendment to the U.S. Constitution (Congress shall make no law restricting “the right of the people to petition the Government for a redress of grievances.”). However, the ability to seek injunctive relief has, at times, come into conflict with the competition laws (both the Sherman and Clayton Acts), since it may serve to restrict competition or otherwise produce what may be seen as anticompetitive results.
The courts have attempted to deal with the tension between the antitrust laws and the right to petition government entities through the Noerr-Penningtondoctrine. Noerr-Pennington provides immunity from liability to an antitrust defendant arising from individual or concerted conduct intended to legitimately seek redress for grievances that may have the effect of causing competitive harm. The literature discussing the contours of this doctrine would defoliate a large forest (or at least a terabyte’s worth of virtual forest). But recently, the tension between the right to seek injunctive relief and potential antitrust liability has arisen in a new and intriguing context at the intersection of antitrust and intellectual property law.
Both the U.S. Federal Trade Commission and several judicial forums have considered …