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 firms for licenses to manufacture and sell Omega’s patented drug. The facts of this example indicate that Omega, or Omega’s licensee, would be a potential competitor of Delta in the absence of the licensing arrangement, and thus the firms are in a horizontal relationship in the relevant goods market that includes drugs for the treatment of this particular disease. The evaluating Agency would apply a merger analysis to this transaction, since it involves an acquisition of a potential competitor.

6 Invalid or Unenforceable Intellectual Property Rights

The Agencies may challenge the enforcement of invalid intellectual property rights as antitrust violations. Enforcement or attempted enforcement of a patent obtained by fraud on the Patent and Trademark Office may violate section 2 of the Sherman Act or section 5 of the Federal Trade Commission Act, if all the elements otherwise necessary to establish a charge are proved. Inequitable conduct before the Patent and Trademark Office will not be the basis of a section 2 claim unless the conduct also involves knowing and willful fraud and the other elements of a section 2 claim are present. Actual or attempted enforcement of patents obtained by inequitable conduct that falls short of fraud under some circumstances may violate section 5 of


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168 solidum naturaliter oontento disertationis prodromus," a work which at once attracted wide attention. The ideas presented were, however, vastly beyond the comprehension of his contemporaries, and they were not accordingly sufficiently appreciated. Not before a century later were his ideas again taken up and the study of geognosy continued on the foundation he had laid. As indicated by the title "Prodromus," the work was intended simply as a forerunner of a more elaborate work, which was never published, although the author had nearly finished it. The reason was, doubtless, that his religious and theological meditations became so absorbing that he found time for nothing else. In 1670 he returned to Denmark on the invitation of Frederik III, but as the king died shortly afterward Stensen went back to Florence. The minister of state Griffenfeldt succeeded in inducing him to come once more for a brief period to Denmark, and from 1672 to 1674 he conducted the anatomical department of the Copenhagen University; then he was again drawn back to Italy, where in 1675, he was consecrated as a Catholic priest. Henceforth he devoted himself exclusively to the service of the church and became wholly lost to science. In 1677 the pope appointed him bishop in partibus, and soon afterward apostolic vicar for northern Germany and Denmark. In this capacity he died in Schwerin in 1686.

This brief notice of the most prominent scholars of this period may suffice to show that although there was, generally speaking, a certain sluggishness in the intellectual life of that age, there were still produced, even in the strictly scientific field, works that were of no small importance. It is only to be regretted that the literature more and more abandoned the people and became the exclusive possession of the learned. It was reserved for a later time to make accessible to the people the results with which science had been enriched during this period and the importance of popularizing knowledge

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 a fundamental defect, one which is characteristic of bourgeois democracy; its pointed criticisms addressed themselves to the surface of political phenomena, not daring to penetrate to their economic causes. At the hands of capitalist reality, the idea of eternal peace, on the basis of a "reasonable" agreement, has fared even more badly than the ideas of liberty, equality and fraternity. For Capitalism, when it rationalized industrial conditions, did not rationalize the social organization of ownership, and thus prepared instruments of destruction such as even the "barbarous" middle ages never dreamed of.

The constant embitterment of international relations and the ceaseless growth of militarism completely undermined the basis of reality under the feet of pacifism. Yet it was from these very things that pacifism took a new lease of life, a life which differed from its earlier phase as the blood and purple sunset differs from the rosy-fingered dawn.

The decades preceding the present war have been well designated as a period of armed peace. During this whole period campaigns were in uninterrupted progress and battles were being fought, but they were in colonies.

Proceeding, as they did, in the territories of backward and powerless peoples, these wars led to a division of Africa, Polynesia and Asia, and prepared the way for the present world war. As, however, there were no wars in Europe after 1871—in spite of a long series of sharp conflicts—the general opinion in petit bourgeois circles began gradually to behold in the growth of armies a guarantee of peace, which was destined ultimately to be established by international law with every institutional sanction. Capitalist governments and munitions kings naturally had no objections to this "pacifist" interpretation of militarism. But the causes of world conflicts were accumulating and the present cataclysm was getting under way.

Theoretically and politically, pacifism stands on the same foundation as does the theory of the harmony of social interests. The antagonisms between capitalist nations have the same economic roots as the antagonisms between the classes. And if we admit the possibility of a progressive blunting of the edge of the class struggle, it requires but a single step further to accept a gradual softening and regulating of international relations.

The source of the ideology of democracy, with all its traditions and illusions, is the petite bourgeoisie. In the second half


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 the Federal Trade Commission Act. In addition, sham litigation to enforce intellectual property rights may also constitute an element of a violation of the Sherman Act. See Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-63 (1993) (“First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits …. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals ‘an attempt to interfere directly with the business relationships of a competitor’ ….” (quoting E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961))); see also id. at 58 (recognizing that “‘a pattern of baseless, repetitive claims’” may result in an antitrust violation (quoting Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972))); Handgards, Inc. v. Ethicon, Inc., 743 F.2d 1282, 1289 (9th Cir. 1984) (patents); Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 992-96 (9th Cir. 1979) (patents); CVD, Inc. v. Raytheon Co., 769 F.2d 842, 850-51 (1st Cir. 1985) (trade secrets). The enforcement of invalid intellectual property rights discussed in this section is distinguishable from licensing agreements where royalties are to be paid after the term of a valid patent right expires. The latter agreements may have “demonstrable efficiencies” that can be taken into account in an effects-based analysis. ,, at 122; see also Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2408 (2015) (explaining that patent law bars “royalties for using an invention after it has moved into the public domain” but distinguishing “defer[red] payments for pre-expiration use of a patent into the post-expiration period”).


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 of the nineteenth century, it suffered a complete internal transformation, but was by no means eliminated from political life. At the very moment that the development of capitalist technology was inexorably undermining its economic function, the general suffrage right and universal military service were still giving to the petite bourgeoisie, thanks to its numerical strength, an appearance of political importance. Big capital, in so far as it did not wipe out this class, subordinated it to its own ends by means of the applications of the credit system. All that remained for the political representatives of big capital to do was to subjugate the petite bourgeoisie, in the political arena, to their purposes, by opening a fictitious credit to the declared theories and prejudices of this class. It is for this reason that, in the decade preceding the war, we witnessed, side by side with the gigantic efforts of a reactionary-imperialistic policy, a deceptive flowering of bourgeois democracy with its accompanying reformism and pacifism. Capital was making use of the petite bourgeoisie for the prosecution of capital's imperialistic purposes by exploiting the ideologic prejudices of the petite bourgeoisie.

Probably there is no other country in which this double process was so unmistakably accomplishing itself as in France. France is the classic land of financial capital, which leans for its support on the petite bourgeoisie of the cities and the towns, the most conservative class of the kind in the world, and numerically very strong. Thanks to foreign loans, to the colonies, to the alliance of France with Russia and England, the financial upper crust of the Third Republic found itself involved in all the interests and conflicts of world politics. And yet, the French petit bourgeois is an out-and-out provincial. He has always shown an instinctive aversion to geography and all his life has feared war as the very devil—if only for the reason that he has, in most cases, but one son, who is to inherit his business, together with his chattels. This petit bourgeois sends to Parliament a radical who has promised him to preserve peace—on the one hand, by means of a league of nations and compulsory international arbitration, and, on the other, with the co-operation of the Russian Cossacks, who are to hold the German Kaiser in check. This radical deputé, drawn from the provincial lawyer class, goes to Paris not only with the best intentions, but also without the slightest conception of the location of the Persian Gulf, and what is the use, and to whom, of the Bagdad Railway. This radical-"pacifistic" bloc of deputies gives


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