Empirical, Doctrinal and Policy Perspectives
Chapter 3: The anatomy of a defense
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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