Patent Misuse and Antitrust Law
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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.
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Chapter 3: The anatomy of a defense

Empirical, Doctrinal and Policy Perspectives

Daryl Lim


This chapter introduces the key forms of misuse, the ones found in the leading cases and discussed in the legal literature. Some are more important than others but they all derive from courts’ attempts to determine what is “wrong” about patentees’ conduct within the context of the facts before them. This ad hoc approach not surprisingly has led to some differences in results and philosophical approaches to misuse. They all derive at least in part, however, from the general principle stated by Judge William Bryson of the Federal Circuit, writing for the Princo majority, who stated “the basic rule of patent misuse: that the patentee may exploit his patent but may not ‘use it to acquire a monopoly not embraced in the patent.’” That basic rule is the golden thread that has essentially been woven into patent misuse in every case from the beginning. But this rule can hide more than it reveals.

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