Thomas Dillickrath, David Emanuelson, Mar 19, 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 whether Noerr-Pennington immunity applies in the context of an entity holding Standard Essential Patents subject to a commitment to license on fair, reasonable, and non-discriminatory terms seeking an injunction against an infringing entity. As discussed below, the answer is unclear, and revolves around interpretation of the nature of a FRAND commitment and, perhaps more interestingly, the fundamental underpinnings of Noerr-Pennington immunity. While issues related to injunctive relief against an infringer of SEPs have reared their head in several jurisdictions, we suggest that the interplay between the Sherman and Clayton Acts and the U.S. Constitution may complicate the issue in a unique manner that increases uncertainty, and may ultimately end up making its way through the Courts of Appeals and even the Supreme Court.
In the discussion below, we begin with a summary of the continuing debate over the basis of Noerr-Pennington immunity. We then provide some context for those not familiar with the issues surrounding FRAND-encumbered SEPs (this issue was the subject, for example, of a recent FTC/DOJ workshop, held on December 10, 2012). With that background in mind, we assess the most recent developments at the intersection of these issues, and offer some tentative conclusions on what may happen in the future.