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Robert A. Matthews, A primer on US antitrust claims against patentees under Walker Process, Journal of Intellectual Property Law & Practice, Volume 2, Issue 10, October 2007, Pages 657–665, https://doi.org/10.1093/jiplp/jpm142
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Abstract
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.
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.
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.
