Chapter 5: Rethinking the future of patent misuse
Judge Richard Posner famously asserted that it is “rather late in the day” to develop misuse and rather one should turn to antitrust law to solve the issues currently addressed or addressable under misuse. While some courts are willing to apply misuse to new categories of misconduct, others are more reluctant to do so. It is not at all obvious why a cohesive doctrine of misuse cannot be developed and applied to new fact patterns. This study identified four areas where misuse either had an impact or could have an impact. The first area is with standard essential patents. When an industry standard coalescences around patents held by a patentee, it gives that patentee an ability to distort the competitive process beyond what inheres to the patent right. That ability may be obtained by deception or it may be properly obtained by improper exercise.
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