Are The Patent Trolls Vulnerable To Antitrust Claims?

We previously wrote about the nascent efforts of legislators, regulators, and representatives of technology-dependent industries to use the antitrust laws, such as Section 2 of the Sherman Act or Section 7 of the Clayton Act, to rein in perceived abuses by patent aggregation entities ("PAEs"), more commonly known as patent trolls. One potential difficulty in bringing PAEs' actions under the antitrust laws is that their activities do not fit neatly into any traditional definition of a relevant product market. The United States District Court of Maryland, however, recently permitted antitrust counterclaims against a PAE to proceed to discovery, even though the United States District Court for the Eastern District of Virginia previously dismissed similar counterclaims involving the same parties based on a failure to allege a proper relevant product market.¹