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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