Patent Misuse and Antitrust Law

Patent Misuse and Antitrust Law

Empirical, Doctrinal and Policy Perspectives

Daryl Lim

This unique book provides a comprehensive account of the patent misuse doctrine and its relationship with antitrust law. Created to remedy and discourage misconduct by patent owners a century ago, its proper role today is debated more than ever before. Innovation and competition take place in increasingly complex environments that demand a clear understanding of where illegality ends and legitimate corporate strategy begins.

Chapter 1: Misuse and antitrust

Daryl Lim

Subjects: law - academic, intellectual property law


Like other areas of the law, situations arise in patent law where adherence to the letter of the law would create formalistically correct but unjust outcomes. In these situations judges invoke equity in an attempt to guide the case to an outcome that is fair and just to all parties concerned as well as to the public at large. Equity in patent law functions as both a sword and shield. Equity enables patentees, through the doctrine of equivalents, to strike at those who “make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of the law.” Equity also functions as a shield, coalescing around in fringers when patentees abuse their rights, and in so doing makes it unjust to allow them to insist on asserting their rights. One such defense is inequitable conduct.

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