In a post here a few months ago, I noted that a series of dissents in intellectual property cases over the past decade had established Justice Stephen Breyer “as one of the Supreme Court’s leading intellectual property law skeptics, along with now-retired Justice John Paul Stevens.”  “Not coincidentally,” I added, breyer“Justices Breyer and Stevens were also the Court’s most sophisticated members in the area of antitrust.” In light of his majority opinion this year in Kirtsaeng v. Wiley & Sons, which placed a significant limitation on the copyright law “first sale” doctrine, I asked whether we have perhaps “reached an inflection point where Justice Breyer is no longer just the Court’s leading skeptic on IP protection, but where he will lead a major retrenchment.” Today’s opinion in a case in which patent law and antitrust law meet like an irresistible force and an immovable object — FTC v. Actavis, Inc. — with Justice Breyer again writing for the majority, strongly suggests  that the answer to my rhetorical question is an emphatic “yes.”


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