Controlling Opportunistic and Anti-Competitive Intellectual Property Litigation

Abstract

This Article analyzes two methods of controlling rent-seeking costs associated with opportunistic and anti-competitive intellectual property lawsuits. One method discourages rent-seeking costs by reducing the credibility of weak lawsuits. This can he accomplished by restricting preliminary injunctions, encouraging declaratory judgment suits, adjusting the substantive law to encourage summary judgment for defendants, and shifting attorney fees from rent-seeking plaintiffs to prevailing defendants. In addition, antitrust suits have a limited role in deterring the most egregious anti-competitive conduct. A more extreme method eliminates rent-seeking costs by restricting or eliminating certain intellectual property rights. Such an extreme measure is justified if a right generates relatively little direct social benefit, and pre- and post-trial control measures are not effective in containing rent-seeking costs.