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 4: Key objections

Daryl Lim

Subjects: law - academic, intellectual property law

Extract

One judge interviewed for the study acknowledged that “the defense must have more potential than has been realized by litigators” but suggested that it might be an “economic consideration” to favor stronger defenses or that “the client just doesn’t want to bother”. An academic remarked “my advice to clients is to consider the patent misuse issues, but I think they are probably not collectively the strongest defense. It’s a defense you have if you don’t have another one.” Yet only a few of the interviewees thought that patent misuse had no future and should either be abolished or completely subsumed into antitrust. The rest perceived, in differing degrees, a role distinct from antitrust. Some viewed the doctrine as broader than antitrust law in requirements for standing and proof, but as essentially addressing the same issues.

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