Empirical, Doctrinal and Policy Perspectives
Chapter 4: Key objections
One judge interviewed for the study acknowledged that “the defense must have more potential than has been realized by litigators” but suggested that it might be an “economic consideration” to favor stronger defenses or that “the client just doesn’t want to bother”. An academic remarked “my advice to clients is to consider the patent misuse issues, but I think they are probably not collectively the strongest defense. It’s a defense you have if you don’t have another one.” Yet only a few of the interviewees thought that patent misuse had no future and should either be abolished or completely subsumed into antitrust. The rest perceived, in differing degrees, a role distinct from antitrust. Some viewed the doctrine as broader than antitrust law in requirements for standing and proof, but as essentially addressing the same issues.
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