Empirical, Doctrinal and Policy Perspectives
Chapter 7: Charting the scope of patent misuse
Understanding the scope of a patent is central to deciphering whether a patentee’s conduct amounts to misuse. Courts have been relatively consistent in defining misuse based on some notion of patent “scope”. Looking at Figure 7.1, over 80 percent of cases overall defined misuse according to “scope.” From Figure 7.2, it was calculated that about86 percent of courts identified misuse according to some definition of “scope” between 1953 and 1962. This figure rose to 87 percent between 1963 and 1972, briefly falling by a remarkably significant margin to 72 percent between 1973 and 1992, before rising again to 91 percent between 2003 and 2012.
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