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Christianson v. Colt Industries Operating Corp.

Christianson v. Colt Industries Operating Corp.

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Jurisdiction and Procedural Issues 579



equitable relief by reason of its violations of Sections 1 and 2 of the Sherman Act

(15 U.S.C. §§ 1 & 2). . . .” [citation omitted]. The complaint alleged that Colt’s

letters, litigation tactics, and “[o]the[r] . . . conduct” drove petitioners out of

business. ***

Petitioners’ motion for summary judgment raised only a patent-law issue ***—

that Colt’s patents were invalid from their inception for failure to disclose sufficient information to “enable any person skilled in the art . . . to make and

use the same” as well as a description of “the best mode contemplated by the inventor of carrying out his invention.” 35 U.S.C. § 112. Since Colt benefited from the

protection of the invalid patents, the argument continues, the “trade secrets” that

the patents should have disclosed lost any state-law protection. Petitioners therefore argued that the District Court should hold that “Colt’s trade secrets are invalid

and that [their] claim of invalidity shall be taken as established with respect to all

claims and counterclaims to which said issue is material.” [citation omitted]

The District Court awarded petitioners summary judgment as to liability on

both the antitrust and the tortious-interference claims, essentially relying on the

§ 112 theory articulated above. In the process, the District Court invalidated nine

of Colt’s patents, declared all trade secrets relating to the M16 unenforceable,

enjoined Colt from enforcing “any form of trade secret right in any technical information relating to the M16,” and ordered Colt to disgorge to petitioners all such

information. [citation omitted]

Respondent appealed to the Court of Appeals for the Federal Circuit, which,

after full briefing and argument, concluded that it lacked jurisdiction and issued an

unpublished order transferring the appeal to the Court of Appeals for the Seventh

Circuit. [citation omitted] The Seventh Circuit, however, raising the jurisdictional

issue sua sponte, concluded that the Federal Circuit was “clearly wrong” and transferred the case back. [citation omitted] The Federal Circuit, for its part, adhered

to its prior jurisdictional ruling, concluding that the Seventh Circuit exhibited

“a monumental misunderstanding of the patent jurisdiction granted this court,”

[citation omitted] and was “clearly wrong,” [citation omitted]. Nevertheless, the

Federal Circuit proceeded to address the merits in the “interest of justice,” [citation

omitted] and reversed the District Court. We granted certiorari [citation omitted]

and now vacate the judgment of the Federal Circuit.

II

As relevant here, 28 U.S.C. § 1295(a)(1) grants the Court of Appeals for the

Federal Circuit exclusive jurisdiction over “an appeal from a final decision of a

district court of the United States . . . if the jurisdiction of that court was based,

in whole or in part, on [28 U.S.C.] section 1338. . . .” Section 1338(a), in turn,

provides in relevant part that “[t]he district courts shall have original jurisdiction

of any civil action arising under any Act of Congress relating to patents. . . .” Thus,

the jurisdictional issue before us turns on whether this is a case “arising under”



580 Antitrust Law and Intellectual Property Rights

a federal patent statute, for if it is then the jurisdiction of the District Court was

based at least “in part” on § 1338.

A

In interpreting § 1338’s precursor, we held long ago that in order to demonstrate

that a case is one “arising under” federal patent law “the plaintiff must set up

some right, title or interest under the patent laws, or at least make it appear that

some right or privilege will be defeated by one construction, or sustained by the

opposite construction of these laws.” [citation omitted] *** § 1338(a) jurisdiction

*** extend[s] only to those cases in which a well-pleaded complaint establishes

either that federal patent law creates the cause of action or that the plaintiff’s right

to relief necessarily depends on resolution of a substantial question of federal

patent law, in that patent law is a necessary element of one of the well-pleaded

claims. [citation omitted]

The most superficial perusal of petitioners’ complaint establishes, and no

one disputes, that patent law did not in any sense create petitioners’ antitrust or

intentional-interference claims. Since no one asserts that federal jurisdiction rests

on petitioners’ state-law claims, the dispute centers around whether patent law “is

a necessary element of one of the well-pleaded [antitrust] claims.” See Merrell Dow

Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813 (1986). *** Under the wellpleaded complaint rule, as appropriately adapted to § 1338(a), whether a claim

“arises under” patent law “‘must be determined from what necessarily appears in

the plaintiff’s statement of his own claim in the bill or declaration, unaided by

anything alleged in anticipation or avoidance of defenses which it is thought the

defendant may interpose.’” [citation omitted] Thus, a case raising a federal patentlaw defense does not, for that reason alone, “arise under” patent law, “even if the

defense is anticipated in the plaintiff’s complaint, and even if both parties admit

that the defense is the only question truly at issue in the case.”

Nor is it necessarily sufficient that a well-pleaded claim alleges a single theory

under which resolution of a patent-law question is essential. If “on the face of a

well-pleaded complaint there are . . . reasons completely unrelated to the provisions and purposes of [the patent laws] why the [plaintiff] may or may not be

entitled to the relief it seeks,” [citation omitted] then the claim does not “arise

under” those laws. [citation omitted] Thus, a claim supported by alternative theories in the complaint may not form the basis for § 1338(a) jurisdiction unless patent

law is essential to each of those theories.

B

Framed in these terms, our resolution of the jurisdictional issue in this case is

straightforward. Petitioners’ antitrust count can readily be understood to encompass both a monopolization claim under § 2 of the Sherman Act and a groupboycott claim under § 1. The patent-law issue, while arguably necessary to



Jurisdiction and Procedural Issues 581



at least one theory under each claim, is not necessary to the overall success of

either claim.

Section 2 of the Sherman Act condemns “[e]very person who shall monopolize,

or attempt to monopolize. . . .” 15 U.S.C. § 2. The thrust of petitioners’ monopolization claim is that Colt has “embarked on a course of conduct to illegally extend

its monopoly position with respect to the described patents and to prevent ITS

from engaging in any business with respect to parts and accessories of the M-16.”

[citation omitted] The complaint specifies several acts, most of which relate either

to Colt’s prosecution of the lawsuit against petitioners or to letters Colt sent to

petitioners’ potential and existing customers. To make out a § 2 claim, petitioners would have to present a theory under which the identified conduct amounted

to a “willful acquisition or maintenance of [monopoly] power as distinguished

from growth or development as a consequence of a superior product, business

acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563,

570–571 (1966). Both the Seventh Circuit and Colt focus entirely on what they

perceive to be “the only basis Christianson asserted in the complaint for the

alleged antitrust violation,” [citation omitted] that Colt made false assertions

in its letters and pleadings that petitioners were violating its trade secrets, when

those trade secrets were not protected under state law because Colt’s patents were

invalid under § 112. Thus, Colt concludes, the validity of the patents is an essential

element of petitioners’ prima facie monopolization theory and the case “arises

under” patent law.

We can assume without deciding that the invalidity of Colt’s patents is an

essential element of the foregoing monopolization theory rather than merely an

argument in anticipation of a defense. [citation omitted] The well-pleaded complaint rule, however, focuses on claims, not theories, [citation omitted] and just

because an element that is essential to a particular theory might be governed by

federal patent law does not mean that the entire monopolization claim “arises

under” patent law.

Examination of the complaint reveals that the monopolization theory that Colt

singles out (and on which petitioners ultimately prevailed in the District Court) is

only one of several, and the only one for which the patent-law issue is even arguably essential. So far as appears from the complaint, for example, petitioners might

have attempted to prove that Colt’s accusations of trade-secret infringement were

false not because Colt had no trade secrets, but because Colt authorized petitioners

to use them. [citation omitted] In fact, most of the conduct alleged in the complaint could be deemed wrongful quite apart from the truth or falsity of Colt’s

accusations. According to the complaint, Colt’s letters also (1) contained “copies

of inapplicable court orders” and “suggest[ed] that these court orders prohibited

[the recipients] from doing business with” petitioners; and (2) “falsely stat[ed] that

‘Colt’s right’ to proprietary data had been ‘consistently upheld in various courts.’”

[citation omitted] Similarly, the complaint alleges that Colt’s lawsuit against

petitioners (1) was designed “to contravene the permission previously given”;



582 Antitrust Law and Intellectual Property Rights

(2) was “[p]ursued . . . in bad faith by subjecting [petitioners] to substantial

expense in extended discovery procedures”; and (3) was brought only to enable

Colt “to urge customers and potential customers of [petitioners] to refrain from

doing business with them.” [citation omitted] Since there are “reasons completely

unrelated to the provisions and purposes” of federal patent law why petitioners

“may or may not be entitled to the relief [they] see[k]” under their monopolization

claim, [citation omitted] the claim does not “arise under” federal patent law.

The same analysis obtains as to petitioners’ group-boycott claim under § 1 of

the Sherman Act, which provides that “[e]very contract, combination . . ., or conspiracy, in restraint of trade or commerce . . . is declared to be illegal,” 15 U.S.C.

§ 1. This claim is set forth in the allegation that “virtually all suppliers of ITS and

customers of ITS have agreed with Colt to refrain from supplying and purchasing

M-16 parts and accessories to or from ITS, which has had the effect of requiring ITS to close its doors and no longer transact business.” [citation omitted] As

this case unfolded, petitioners attempted to prove that the alleged agreement was

unreasonable because its purpose was to protect Colt’s trade secrets from petitioners’ infringement and, given the patents’ invalidity under § 112, Colt had no

trade secrets to infringe. Whether or not the patent-law issue was an “essential”

element of that group-boycott theory, however, petitioners could have supported

their group-boycott claim with any of several theories having nothing to do with

the validity of Colt’s patents. Equally prominent in the complaint, for example,

is a theory that the alleged agreement was unreasonable not because Colt had no

trade secrets to protect, but because Colt authorized petitioners to use them. Once

again, the appearance on the complaint’s face of an alternative, non-patent theory

compels the conclusion that the group-boycott claim does not “arise under”

patent law.

III

*** Colt correctly observes that one of Congress’ objectives in creating a Federal

Circuit with exclusive jurisdiction over certain patent cases was “to reduce the

widespread lack of uniformity and uncertainty of legal doctrine that exist[ed] in

the administration of patent law.” H.R.Rep. No. 97-312, p. 23 (1981). Colt might

be correct (although not clearly so) that Congress’ goals would be better served if

the Federal Circuit’s jurisdiction were to be fixed “by reference to the case actually litigated,” rather than by an ex ante hypothetical assessment of the elements

of the complaint that might have been dispositive. [citation omitted] Congress

determined the relevant focus, however, when it granted jurisdiction to the Federal

Circuit over “an appeal from . . . a district court . . . if the jurisdiction of that court

was based . . . on section 1338.” 28 U.S.C. § 1295(a)(1) (emphasis added). Since

the district court’s jurisdiction is determined by reference to the well-pleaded complaint, not the well-tried case, the referent for the Federal Circuit’s jurisdiction

must be the same. The legislative history of the Federal Circuit’s jurisdictional provisions confirms that focus. See, e.g., H.R.Rep. No. 97-312, supra, at 41 (cases fall

within the Federal Circuit’s patent jurisdiction “in the same sense that cases are said



Jurisdiction and Procedural Issues 583



to ‘arise under’ federal law for purposes of federal question jurisdiction”). In view

of that clear congressional intent, we have no more authority to read § 1295(a)(1)

as granting the Federal Circuit jurisdiction over an appeal where the well-pleaded

complaint does not depend on patent law, than to read § 1338(a) as granting a district court jurisdiction over such a complaint. See Pratt, 168 U.S., at 259. ***

We vacate the judgment of the Court of Appeals for the Federal Circuit and

remand with instructions to transfer the case to the Court of Appeals for the

Seventh Circuit. See 28 U.S.C. § 1631.

It is so ordered.

[Concurrence by Justice Stevens omitted]



Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc.

535 U.S. 826 (2002)



Justice SCALIA delivered the opinion of the Court.

In this case, we address whether the Court of Appeals for the Federal Circuit

has appellate jurisdiction over a case in which the complaint does not allege a

claim arising under federal patent law, but the answer contains a patent-law

counterclaim.

I

Respondent, Vornado Air Circulation Systems, Inc., is a manufacturer of patented

fans and heaters. In late 1992, respondent sued a competitor, Duracraft Corp.,

claiming that Duracraft’s use of a “spiral grill design” in its fans infringed respondent’s trade dress. The Court of Appeals for the Tenth Circuit found for Duracraft,

holding that Vornado had no protectable trade-dress rights in the grill design.

[citation omitted] (Vornado I).

Nevertheless, on November 26, 1999, respondent lodged a complaint with the

United States International Trade Commission against petitioner, The Holmes

Group, Inc., claiming that petitioner’s sale of fans and heaters with a spiral grill

design infringed respondent’s patent and the same trade dress held unprotectable

in Vornado I. Several weeks later, petitioner filed this action against respondent

in the United States District Court for the District of Kansas, seeking, inter alia, a

declaratory judgment that its products did not infringe respondent’s trade dress

and an injunction restraining respondent from accusing it of trade-dress infringement in promotional materials. Respondent’s answer asserted a compulsory counterclaim alleging patent infringement.

The District Court granted petitioner the declaratory judgment and injunction it sought. *** Respondent appealed to the Court of Appeals for the Federal

Circuit. Notwithstanding petitioner’s challenge to its jurisdiction, the Federal

Circuit vacated the District Court’s judgment *** We granted certiorari to consider

whether the Federal Circuit properly asserted jurisdiction over the appeal. [citation

omitted]



584 Antitrust Law and Intellectual Property Rights

II

Congress vested the Federal Circuit with exclusive jurisdiction over “an appeal from

a final decision of a district court of the United States . . . if the jurisdiction of that

court was based, in whole or in part, on [28 U.S.C. §] 1338 . . . .” 28 U.S.C. § 1295(a)

(1) (emphasis added). Section 1338(a), in turn, provides in relevant part that

“[t]he district courts shall have original jurisdiction of any civil action arising under

any Act of Congress relating to patents . . . .” Thus, the Federal Circuit’s jurisdiction is fixed with reference to that of the district court, and turns on whether the

action arises under federal patent law.

Section 1338(a) uses the same operative language as 28 U.S.C. § 1331, the statute conferring general federal-question jurisdiction, which gives the district courts

“original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.” (Emphasis added.) We said in Christianson v. Colt

Industries Operating Corp., 486 U.S. 800, 808 (1988), that “[l]inguistic consistency” requires us to apply the same test to determine whether a case arises under

§ 1338(a) as under § 1331.

The well-pleaded-complaint rule has long governed whether a case “arises

under” federal law for purposes of § 1331. [citation omitted] As “appropriately

adapted to § 1338(a),” the well-pleaded-complaint rule provides that whether a

case “arises under” patent law “must be determined from what necessarily appears

in the plaintiff’s statement of his own claim in the bill or declaration . . . .” Christianson, 486 U.S., at 809. The plaintiff’s well-pleaded complaint must “establis[h]

either that federal patent law creates the cause of action or that the plaintiff’s right

to relief necessarily depends on resolution of a substantial question of federal patent law . . . .” Ibid. Here, it is undisputed that petitioner’s well-pleaded complaint

did not assert any claim arising under federal patent law. The Federal Circuit therefore erred in asserting jurisdiction over this appeal.

A

Respondent argues that the well-pleaded-complaint rule, properly understood,

allows a counterclaim to serve as the basis for a district court’s “arising under”

jurisdiction. We disagree.

Admittedly, our prior cases have only required us to address whether a federal

defense, rather than a federal counterclaim, can establish “arising under” jurisdiction. Nevertheless, those cases were decided on the principle that federal jurisdiction generally exists “only when a federal question is presented on the face of the

plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386,

392 (1987) (emphasis added). As we said in The Fair v. Kohler Die & Specialty

Co., 228 U.S. 22, 25 (1913), whether a case arises under federal patent law “cannot depend upon the answer.” Moreover, we have declined to adopt proposals

that “the answer as well as the complaint . . . be consulted before a determination

[is] made whether the case ‘ar[ises] under’ federal law . . . .” [citation omitted] It

follows that a counterclaim—which appears as part of the defendant’s answer, not



Jurisdiction and Procedural Issues 585



as part of the plaintiff’s complaint—cannot serve as the basis for “arising under”

jurisdiction. [citation omitted]

*** [W]e decline to transform the longstanding well-pleaded-complaint rule

into the “well-pleaded-complaint-or-counterclaim rule” urged by respondent.

B

Respondent argues, in the alternative, that even if a counterclaim generally cannot establish the original “arising under” jurisdiction of a district court, we should

interpret the phrase “arising under” differently in ascertaining the Federal Circuit’s

jurisdiction. In respondent’s view, effectuating Congress’s goal of “promoting the

uniformity of patent law,” [citation omitted] requires us to interpret §§ 1295(a)(1)

and 1338(a) to confer exclusive appellate jurisdiction on the Federal Circuit whenever a patent-law counterclaim is raised.

We do not think this option is available. Our task here is not to determine what

would further Congress’s goal of ensuring patent-law uniformity, but to determine what the words of the statute must fairly be understood to mean. It would

be difficult enough to give “arising under” the meaning urged by respondent if

that phrase appeared in § 1295(a)(1)—the jurisdiction-conferring statute—itself.

[citation omitted] Even then the phrase would not be some neologism that might

justify our adverting to the general purpose of the legislation, but rather a term

familiar to all law students as invoking the well-pleaded-complaint rule. [citation

omitted] But the present case is even weaker than that, since § 1295(a)(1) does not

itself use the term, but rather refers to jurisdiction under § 1338, where it is well

established that “arising under any Act of Congress relating to patents” invokes,

specifically, the well-pleaded-complaint rule. It would be an unprecedented feat

of interpretive necromancy to say that § 1338(a)‘s “arising under” language means

one thing (the well-pleaded-complaint rule) in its own right, but something quite

different (respondent’s complaint-or-counterclaim rule) when referred to by

§ 1295(a)(1).

Not all cases involving a patent-law claim fall within the Federal Circuit’s jurisdiction. By limiting the Federal Circuit’s jurisdiction to cases in which district courts

would have jurisdiction under § 1338, Congress referred to a well-established body

of law that requires courts to consider whether a patent-law claim appears on the

face of the plaintiff’s well-pleaded complaint. Because petitioner’s complaint did

not include any claim based on patent law, we vacate the judgment of the Federal

Circuit and remand the case with instructions to transfer the case to the Court of

Appeals for the Tenth Circuit. See 28 U.S.C. § 1631.

It is so ordered.

[Concurrences by Justices Stevens and Ginsburg are omitted.]

Comments and Questions

1. Does Vornado risk undermining the purpose of the Federal Circuit? Why or

why not?



586 Antitrust Law and Intellectual Property Rights

2. Should Congress give the Federal Circuit exclusive jurisdiction over all

appeals that involve the intersection of antitrust law and intellectual property law? Why or why not? What would be the risks and benefits of such an

approach?

3. In light of Vornado, the order in which litigants file their claims may determine which court will hear any appeals. If the patentee files an infringement action

and the alleged infringer files an antitrust counterclaim, the Federal Circuit will hear

the appeal. Conversely, if an antitrust plaintiff brings a claim and the defendant

brings a patent infringement counterclaim, the regional circuit in which the district

court sits will hear the appeal. This matters because some litigants perceive the Federal Circuit to be relatively hostile to antitrust claims. This means that an antitrust

plaintiff who wants to avoid having the Federal Circuit decide its case could either

file its antitrust claim before the patentee files an infringement action or, at least,

decline to file its antitrust claim as a counterclaim in an infringement suit (and

instead file it as a separate case). The first strategy is not possible when the antitrust

claim is based on the patentee’s infringement suit. Patentees have tried to eliminate

the second strategy by arguing that antitrust claims are compulsory counterclaims.

Consequently, they assert that if the infringement defendant does not file their antitrust lawsuit as a counterclaim (whose appeal would be heard by the Federal Circuit), then the antitrust claim is barred. This leads to the legal question of whether

antitrust counterclaims are compulsory, an issue addressed in the following case:



Hydranautics v. FilmTec Corp.

70 F.3d 533 (9th Cir. 1995)



[Editor’s Note: The background facts of this case are excerpted in a note in Chapter 4.]

A. Compulsory Counterclaim

It was permissible for Hydranautics to delay suing FilmTec for predatory patent

litigation until it had succeeded in defeating the infringement case. The Supreme

Court in Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661 (1944),

said that “the fact that [an antitrust counterclaim for damages] might have been

asserted . . . in the prior suit . . . does not mean that the failure to do so renders

the prior judgment res judicata as respects it.” Mercoid, 320 U.S. at 671. A claim

that patent infringement litigation violated an antitrust statute is a permissive, not

a mandatory, counterclaim in a patent infringement case, and is not barred in a

subsequent suit by failure to raise it in the infringement suit. See Id. at 669–71.

An answer must state as a counterclaim a claim which “arises out of the same

transaction or occurrence” as the plaintiff’s claim:

(a) Compulsory counterclaims. A pleading shall state as a counterclaim any claim

which at the time of serving the pleading the pleader has against any opposing

party, if it arises out of the same transaction or occurrence that is the subject matter

of the opposing party’s claim. . . .



Jurisdiction and Procedural Issues 587

(b) Permissive counterclaims. A pleading may state as a counterclaim any claim

against an opposing party not arising out of the transaction or occurrence that is

the subject matter of the opposing party’s claim.



Fed.R.Civ.P. 13. If a party has a counterclaim which is compulsory and fails to

plead it, it is lost, and cannot be asserted in a second, separate action after conclusion of the first. [citation omitted]

We determine whether a claim arises out of the same transaction or occurrence by analyzing “whether the essential facts of the various claims are so logically

connected that considerations of judicial economy and fairness dictate that all the

issues be resolved in one lawsuit.”

While there may be cases where resolving both issues at once is preferable,

Mercoid leaves open the possibility of raising antitrust claims as permissive counterclaims in an infringement action, or in a separate and subsequent action.

In many cases even if the antitrust counterclaim were asserted by counterclaim, the court would sever the issues and resolve the infringement case first. The

evidence for patent infringement and antitrust damages may differ considerably,

depending on the particulars of the case. If the plaintiff wins the patent infringement suit, then the antitrust counterclaim may ordinarily be disposed of expeditiously on motion, instead of by a time consuming and expensive trial. ***

Appeals from patent infringement decisions now go to the Federal Circuit,

but appeals from antitrust decisions go to the regional circuit in which the district

court sits. [citation omitted] If the antitrust counterclaim were treated as compulsory, then any appeal of the antitrust decision would go to the Federal Circuit, not

the regional circuit. This may generate a difference between the antitrust law generally applicable within each regional circuit, and antitrust law in predatory patent

infringement cases. That Congress has provided for regional courts of appeals to

decide antitrust appeals, and for the federal circuit to decide patent appeals, suggests that Congress perceived a distinction between the kinds of facts giving rise to

one or the other.

The antitrust claim attacks the patent infringement lawsuit itself as the wrong

which furnishes the basis for antitrust damages. ***

Comments and Questions

1. When, if ever, should antitrust claims be considered compulsory counterclaims to a patent infringement lawsuit?

Does the Federal Circuit’s decision in Nobelpharma to decide certain antitrustpatent issues as a matter of Federal Circuit, and not regional circuit, law affect your

answer?

2. Long before the creation of the Federal Circuit, antitrust scholars and enforcement officials debated how to handle patent infringement lawsuits in which the

defendant asserts an antitrust violation as either a defense or a counterclaim. The

influential 1955 Attorney General’s National Committee to Study the Anti-trust

Laws recommended that courts “should order separate trials of the antitrust issues



588 Antitrust Law and Intellectual Property Rights

and the patent issues. Separation may be essential not only ‘in furtherance of convenience and to avoid prejudice’ but also ‘to serve the ends of justice.’” Components, Inc. v. Western Elec. Co., 318 F.Supp. 959, 966 (Me. 1970) (quoting Report

at 249).

Do you agree? Why or why not?



Bibliography of Additional Resources

David T. DeZern, Federal Circuit Antitrust Law and the Legislative History of the Federal

Court’s Improvement Act of 1982, 26 Rev. Litig. 457 (2007)

John Donofrio & Edward C. Donovan, Christianson v. Colt Industries Operating Corp.:

The Application of Federal Question Precedent to Federal Circuit Jurisdiction Decisions,

45 Am. U. L. Rev. 1835 (1996)

Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U.

L. Rev. 1 (1989)

Claudette Espanol, The Federal Circuit: Jurisdictional Expansion into Antitrust Issues Relating

to Patent Enforcement, 2 Seton Hall Circuit Rev. 307 (2005)

James B. Gambrell, The Evolving Interplay of Patent Rights and Antitrust Restraints in the

Federal Circuit, 9 Tex. Intell. Prop. L.J. 137 (2001)

Karen C. Hermann, Are Antitrust Counterclaims in Patent Infringement Suits Permissive or

Compulsory?, 26 AIPLA Q.J. 437 (1998)

Paul M. Janicke, Two Unsettled Aspects of the Federal Circuit’s Patent Jurisdiction, 11 Va. J.L.

& Tech 3 (Spring 2006)

Ronald S. Katz & Adam J. Safer, Should One Patent Court Be Making Antitrust Law for the

Whole Country?, 69 Antitrust L. J. 687 (2002)

Gentry Crook McLean, Vornado Hits the Midwest: Federal Circuit Jurisdiction in Patent and

Antitrust Cases after Holmes v. Vornado, 82 Tex. L. Rev. 1091 (2004)

Ravi V. Sitwala, In Defense of Holmes v. Vornado: Addressing the Unwarranted Criticism, 79

N.Y.U. L. Rev. 452 (2004)



APPENDICES



Appendix A: Statutory Supplement

Antitrust Statutes

Excerpts from The Sherman Act

Excerpts from The Clayton Act

The National Cooperative Research Act of 1984, as amended by the National

Cooperative Research and Production Act of 1993 and the Standards

Development Organization Advancement Act of 2004

Patent Statutes

Copyright Statutes

Trademark Statutes

Appendix B: Antitrust Guidelines for the Licensing of Intellectual Property

Appendix C: Microeconomic Analysis and Graphs



589



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