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United States v. Widget Co., Newco, and Patent Aggregator Plus LLC: A Hypothetical Closing Argument

J. Robert Robertson and Logan M. Breed, 79 Antitrust Law Journal 527, 2014

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The issue of nonpracticing entities’ (NPEs) patent aggregation and assertion is a new topic in antitrust law, but the intersection of antitrust law with patent rights is not a new phenomenon. Courts have struggled with the antitrust issues associated with patents for nearly a hundred years. Nevertheless, it is entirely unclear how courts will treat the recent trend of patent aggregation and assertion by NPEs. Other authors in this Symposium have addressed this phenomenon from either a theoretical or academic perspective. In this article, the authors, who litigate and try antitrust cases, have taken a different tack by using the hypothetical case of a NPE’s purchase of a set of patents from another company with the intention of asserting the combined patent pool against the seller’s competitors. The authors address the hypothetical case in the form of an oral argument before a federal district court. The article is thus in the form of a transcript and is footnoted with the relevant cases and other source material. The dialogue between counsel and the court is designed to emphasize the diverse positions of the parties and to highlight the difficult issues that may arise in such a litigated case.

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