Journal Article

A primer on US antitrust claims against patentees under <i>Walker Process</i>

Robert A. Matthews

in Journal of Intellectual Property Law & Practice

Volume 2, issue 10, pages 657-665
Published in print October 2007 | ISSN: 1747-1532
Published online August 2007 | e-ISSN: 1747-1540 | DOI:
A primer on US antitrust claims against patentees under Walker Process

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Legal context

In the wake of two recent cases from the Federal Circuit on the subject, this article provides an introduction to the Walker Process doctrine under US law. Under the doctrine, a patentee who knowingly enforces a patent procured by intentional fraud on the patent office may lose its immunity to antitrust claims, should it act to enforce its patent.

Key points

Walker Process fraud refers to a knowing and deliberate fraud perpetrated on the patent office as opposed to mere acts of inequitable conduct. Proving that a patent applicant engaged in Walker Process fraud does not by itself prove liability for an antitrust violation. The accused infringer must still prove the individual elements of an antitrust claim. Antitrust claims based on Walker Process fraud require significant time and resources to litigate.

Practical significance

With the allure of mandatory treble damages and attorney's fees, antitrust claims based on Walker Process fraud can serve as a potent counterclaim for an accused infringer's arsenal. But the legal requirements and resources needed to successfully litigate these claims to a conclusion may temper their effectiveness for the typical patent-infringement suit.

Keywords: The interplay of US rules on patent law and competition law, under what is known as the Walker Process doctrine, exposes a patent owner to the risk of liability under antitrust law for enforcing a patent which he knows to have been procured by intentional fraud.; Antitrust claims brought under the Walker Process doctrine are complex, requiring a major commitment in terms of time and resources—and even then the fact that the patent owner has perpetrated a fraud on the USPTO does not of itself establish antitrust liability.; In this article, the Walker Process doctrine is revisited in the light of recent case law, examining its ramifications for patent litigants and for the enforcement of antitrust policy.

Journal Article.  7140 words. 

Subjects: Arbitration ; Intellectual Property Law

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