IP, Antitrust, and the Limits of First Amendment Immunity: Shouting ‘Injunction’ in a Crowded Courthouse

Philadelphia partner Paul Saint-Antoine wrote an article for Antitrust titled, “IP, Antitrust, and the Limits of First Amendment Immunity: Shouting ‘Injunction’ in a Crowded Courthouse.”

In courtrooms across the country and in the International Trade Commission, owners of patents essential to smartphones and other high tech devises are seeking injunctions and exclusion orders to block the sale and importation of these products.  In his article for the ABA’s magazine, Paul focuses on two related issues raised by these so-called “smartphone wars”:  (1) whether a patent owner’s request for an injunction is inconsistent with its prior commitment to license its essential IP on fair, reasonable and non-discriminatory terms; and (2) whether an antitrust claim against the patent owner who seeks such equitable relief is barred by the “Noerr-Pennington” doctrine.

Under the Noerr-Pennington doctrine, a party that exercises its First Amendment right to petition the government is generally immune from antitrust liability. The doctrine extends to petitioning activity by litigants in the judicial system.

Paul concludes that, simply because a court or agency might be the ultimate arbiter of whether an injunction or exclusion order is warranted, the First Amendment does not provide blanket antitrust immunity to owners of essential patents who seek such equitable relief.