Antitrust laws are designed to protect consumers' rights. The Department of Justice ("DOJ"), the Federal Trade Commission ("FTC") and private parties may take legal action against businesses that gain an unfair business advantage through the use of a monopolistic market power or other agreements that unfairly restrain trade. In other words, antitrust laws deter unfair advantages gained by businesses due to monopolistic market power.

For several reasons, the continuing advance of technology involves the use of standards setting organizations ("SSOs"). First, SSOs ensure that there are accepted technical standards in an industry, for example, to ensure interoperability of hardware and/or software products. Second, SSOs encourage the participation and collaboration of multiple members of the industry, thereby obtaining valuable contributions from parties who are normally highly competitive and otherwise might not work together. In addition, such standards provide a benefit to the end users (namely, the consumers of the goods or services governed by the standard) by allowing for economies of scale due to large-scale deployment of the technology covered by the standard, and thereby also helping to lower costs for new technologies.

A patent gives its owner the right to exclude others from making, using, and selling the claimed invention. Thus, patent rights give a patentee great control over who uses his invention. In contrast, the basic idea behind distributing software under an Open Source license is that anyone should be able to view and use the source code of the computer program and modify it for his own use. (The source code is the human readable version of the software.) A business decision to distribute software under an Open Source license affects how the author of the software may be able to use his patent rights, but does not affect whether he can or should apply for patent protection.

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What role should patent law experts play in modern litigation? Rule 702 of the Federal Rules of Evidence allows experts to testify about their opinions when such testimony will assist the trier of fact. The testimony must be "based upon sufficient facts or data," must be "the product of reliable principles and methods," and the witness must have "applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702.

Features

America's patent system is at a crossroads. There are many critics of the patent system; some have become increasingly vocal. Some claim the patent system is outdated. Others label it as a "threat to innovation." As fodder for their arguments, critics often tout examples of one or more patents that, in the words of one academic, are "not new, are obvious, are laughably insipid or sometimes all of the above" ("Patent Prescription: A radical cure for the ailing U.S. patent system," A. Jaffe and J. Lerner, IEEE Spectrum Online, Dec. 10, 2004).

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While not fully disposing of a case, partial summary judgment motions — even when denied — may effectively limit the scope of issues for trial. Knowing how the contours of the applicable federal rule, namely, Federal Rule of Civil Procedure 56, apply in the patent arena can be especially advantageous in complex patent matters involving multiple legal and factual issues. There are two particularly worthwhile topics for patent cases: first, the extent to which the courts differ over what is appropriate for decision upon a motion for partial summary judgment; and second, the requirements for "establishing" facts for the purposes of trial, even when a partial summary judgment motion is denied.