Empirical, Doctrinal and Policy Perspectives
Chapter 2: A brief history of patent misuse
The history of patent misuse in America spans nearly a century. While its past is rooted in patent law, its present is intertwined with anti-trust law. The passage of time usually helps define the contours of a doctrine, but not so with misuse. While the formulaic statement for misuse at each point in its history may have been tolerably clear, its application has been muddied both by the shifting views of patents and the policies underlying both the patent and anti-trust laws. Hence, it is perhaps the best known but least understood defense in patent law. Some say that the modern doctrine of patent misuse began with Morton Salt v. G.S. Suppiger Co., a 1942 Supreme Court decision. Justice Harlan Fiske Stone, writing for a unanimous court, invoked the Court’s equitable powers to prevent a violation of patent policy through the improper expansion of patent grant.
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