Posts in Antitrust

While AI can improve research, drafting, analysis, and overall work product quality, the panel emphasized that it is not a magic button and cannot replace expert legal judgment. The most effective use of AI in patent practice is incremental, targeted, and lawyer-directed—more co-pilot than autopilot. Panelists explored the risks created when inventors, clients, or law firms over-rely on AI-generated disclosures, patent application critiques, or claim strategy recommendations, including the potential for increased attorney workload, inventorship complications, technical inaccuracies, and downstream litigation vulnerabilities. The conversation ultimately framed AI as both a market disruptor and a strategic opportunity for patent law firms. Firms that respond defensively or compete solely on price risk being pushed into an unsustainable race to the bottom. Firms that lean into client education, workflow redesign, transparent billing expectations, disciplined AI usage, and higher-value counseling will be better positioned to compete. The panel made clear that AI will not eliminate the need for sophisticated patent counsel; it will expose which firms are genuinely strategic partners and which are merely labor providers.

To compete in artificial intelligence (AI) markets, emerging companies must choose one of two routes: the capital-intensive route entails buying compute and datasets to build in-house foundation models and refining them into agents for specific use cases. Alternatively, emergents can license pre-trained models and lease compute to focus on developing applications for the end user, whether that is a solo software developer or an entire business domain.

This week on IPWatchdog Unleashed, I spoke with Kristen Osenga, who is a Professor of Law and Associate Dean for Academic Affairs at the University of Richmond School of Law. Kristen is a familiar voice to many in the patent community. She has been a regular participant in serious conversations about patent law, standard essential patents (SEPs), antitrust, competition policy, injunctions, and the broader innovation ecosystem.

Yesterday, the U.S. Department of Justice (DOJ) filed a statement of interest (SOI) in an ongoing patent infringement case between consumer electronics giant Samsung and memory systems developer Netlist, which includes counterclaims by Samsung for violations of U.S. antitrust law. The SOI reiterates arguments made by the DOJ in other litigation involving standard essential patents (SEPs), asking the court to render its decision on Samsung’s antitrust claims in accordance with the fact that inclusion in a technical standard does not create a presumption that patent rights create market power.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today issued a precedential decision in Ingevity Corporation v. BASF Corporation, affirming a jury verdict that found Ingevity liable for unlawful tying under federal antitrust laws. On appeal, the CAFC upheld the U.S. District Court for the District of Delaware’s decision to deny Ingevity’s post-trial motions for judgment as a matter of law (JMOL). As a result, the ruling included an award of more than $84 million in trebled damages to BASF Corporation (BASF). Judge Lourie authored the unanimous opinion, joined by Judges Prost and Cunningham.

A recent U.S. Court of Appeals for the Third Circuit ruling upholding the federal Inflation Reduction Act (IRA)’s drug price negotiation program has been appealed to the U.S. Supreme Court, one of many challenges to the Act’s constitutionality. The IRA requires drugmakers to sell selected patented drugs to the government for its Medicare Parts B & D programs at a stipulated “maximum fair price”. If they don’t agree to these prices, then they face tax penalties on sales of the drug exceeding their profits from it, or the exclusion of all their drugs from Medicare and Medicaid purchases. This would foreclose access to up to 160 million patients, accounting for around 40% of US prescription drug spending or 20% of global prescription drug spending. US government purchases are valued at $200 billion annually.

The United States Department of Justice (DOJ) filed a Statement of Interest on Monday in Disney Enterprises, Inc. v. InterDigital, Inc., et al., an antitrust case filed by Disney in August 2025 that alleged “abusive licensing practices,” monopolization of the video compression and streaming markets and Sherman Act violations by InterDigital. The DOJ’s statement opined that patents, including standard essential patents (SEPs), do not necessarily confer market power to the patentee.  

Late last week, the Federal Trade Commission (FTC) announced that the agency was acceding to decisions by U.S. regional circuit courts vacating the agency’s Biden Administration-era rule banning noncompete clauses from U.S. employment contracts and preventing their enforcement. While some lawmakers have decried the decision to end this rule, the FTC also issued a request for information (RFI) as the Trump Administration seeks to develop a case-by-case enforcement approach for cracking down on noncompete abuses.

A Virginia judge today found Google liable under Sections 1 and 2 of the Sherman Act for anticompetitive behavior and monopolization of the publisher ad server and ad exchange markets for open-web display advertising. However, the court dismissed a claim that Google monopolizes the advertiser ad network market. Like the D.C. court that found Google liable under Section 2 of the Sherman Act for monopolization of search services in August 2024, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia also declined to sanction Google “at this juncture” despite the company’s “systemic disregard of the evidentiary rules regarding spoliation of evidence and its misuse of the attorney-client privilege,” which Brinkema said “may well be sanctionable.”

A 2024 Republican election victory marks the end of the four-year Neo-Brandeisian antitrust experiment at the Federal Trade Commission (FTC) and Department Of Justice (DOJ). Spearheaded by FTC chair Lina Khan and DOJ attorney general for antitrust Jonathan Kanter, their movement sought to upend antitrust’s longstanding bipartisan consumer welfare-focused consensus. Instead, they focused on punishing businesses for bigness; opposing mergers and other business practices based on speculative rather than probable theories that of competitive harm; and orienting antitrust toward policy considerations outside economic competition, such as income redistribution, labor, and environmentalism.

Last week President-elect Trump announced that he would nominate Gail Slater as Assistant Attorney General for the Antitrust Division of the Department of Justice. Meanwhile, people with knowledge of the Trump Transition tell IPWatchdog that the front runner to be named Director of the United States Patent and Trademark Office (USPTO) continues to be Vishal Amin, Intel’s head of IP policy. While it is true that Amin served as the Intellectual Property Enforcement Coordinator during President Trump’s first term, the appointment of Amin to head the USPTO would be an extraordinary head-scratcher, if that in fact does come to pass.

In the immediate wake of such an historic election, it is far too early to know what the intellectual property landscape will really be like under a second Trump Administration. However, IPWatchdog reached out to IP stakeholders for some initial comments, and their educated predictions and insights are included in full below.

On October 8, the U.S. Department of Justice (DOJ) and attorneys general (AGs) from every U.S. state as well as the District of Columbia, Guam and Puerto Rico filed a proposed remedy framework in the federal antitrust lawsuit against Internet services giant Google currently ongoing in the U.S. District Court for the District of Columbia. While the proposed remedies could change with further discovery, the framework includes several measures that would prohibit Google’s self-preferencing its search engine platform on its products and certain contractual behaviors that undermine competition from rival search engines.

On the heels of a judgment from the U.S. District Court for the District of Columbia earlier this month that found that “Google is a monopolist,” Yelp, Inc. has brought a lawsuit against Google in the Northern District of California under Section 2 of the Sherman Act, 15 U.S.C. § 2, and California’s Unfair Competition Law. The suit alleges that Google is “engaging in various anticompetitive practices designed to monopolize the markets for local search services and local search advertising.”