Empirical, Doctrinal and Policy Perspectives
Chapter 1: Misuse and antitrust
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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