Why the New Administration Should Bury the New Madison Approach

The “New Madison” approach sounds so promising. Old but new. Updating the classics for the modern era. What could be bad? In a word: everything. The intersection of patent and antitrust law has a long pedigree. For decades, antitrust’s role in patent-based activity has been acknowledged. Patent licenses are subject to antitrust scrutiny. “Pay for delay” settlements are not entitled to antitrust immunity. And activity in the context of standard setting organizations (“SSOs”) could c