Sen. Klobuchar has proposed a new law titled the “Anticompetitive Exclusionary Conduct Prevention Act of 2020.” [PDF of Bill]
The key provision is as follows:
It shall be unlawful for a person, acting alone or in concert with other persons, to engage in exclusionary conduct that presents an appreciable risk of harming competition.
Here, exclusionary conduct is defined as conduct that disadvantages “actual or potential competitors” or “tends to foreclose or limit the opportunity of 1 or more actual or potential competitors to compete.” For companies our groups with large market share, we assume that if they undertake exclusionary conduct then it will harm competition unless the procompetitive benefits are proven.
The bill is interesting in that it has a small caveat for securing and enforcing intellectual property rights:
Applying for or enforcing a patent, trademark, or copyright, unless such applications or enforcement actions are baseless or made in bad faith, shall not alone constitute exclusionary conduct, but such actions may be considered as part of a course of conduct that constitutes exclusionary conduct.
Thus, under the provision, “good faith” enforcement actions would not – alone – be actionable, but could be combined with other activity to show that the patent holder injured competitors.
I don’t understand why the competitors can’t just eat together politely.