Although the owner of intellectual property rights is privileged to enforce those rights through litigation and to settle such litigation on satisfactory terms, infringement actions or case settlements can create liability for antitrust violations or unfair competition. Most importantly, an agreement in restraint of trade is not sheltered from antitrust scrutiny because it is made in the context of settling threatened or actual infringement litigation. That a patent confers a limited legal monopoly in a product, method or process is only one fact that is taken into account in evaluating whether the terms under which infringement litigation is settled unfairly affect competition. Agreements that settle infringement litigation or interference proceedings between competitors should be evaluated from an antitrust perspective before closing.
Coleman, Deborah A.
"Antitrust Issues in the Litigation and Settlement of Infringement Claims,"
Akron Law Review: Vol. 37
, Article 6.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol37/iss2/6