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 7: Charting the scope of patent misuse

Empirical, Doctrinal and Policy Perspectives

Daryl Lim


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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