Empirical, Doctrinal and Policy Perspectives
Chapter 6: The empirical landscape of misuse
This study coded every case substantively discussing patent misuse that was decided by a federal district and appellate court in each of the 12 circuits, as well as the Federal Circuit and the Supreme Court. The dataset consisted of four Supreme Court opinions, 70 court of appeals opinions and 294 district court opinions between January 1, 1953 and December 31, 2012. It is noteworthy that no Supreme Court opinions have been rendered since 1982, the year the Federal Circuit came into being. This was not due to a lack of petitions for certiorari filed. In 55 cases, petitions were filed but only four were granted. Dawson Chemical Co. v. Rohm & Haas Co. and Zenith Radio Corp. v. Hazeltine Research Inc. were appeals from the Fifth Circuit and Seventh Circuit respectively, while Brulotte v. Thys Co. was an appeal from the Washington State Supreme Court. The last case, United States Gypsum Co. v. National Gypsum Co, the appeal was directly from the district court and expedited because it related to a matter of “general public importance.”
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