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 8: Conclusion

Empirical, Doctrinal and Policy Perspectives

Daryl Lim


From its early roots in patent law’s doctrine of contributory infringement of A.B. Dick and Motion Picture Patents, misuse became intertwined with the antitrust laws in the Mercoid cases. The Supreme Court in Morton Salt returned misuse to its roots and patent policy. As the antitrust laws became shaped by the Chicago School, so did it seep into misuse. That approach was carried from the Seventh Circuit’s USM Corp decision to the Federal Circuit in Windsurfing and Princo. And under a crust of Supreme Court precedent which remains good law, we have a sea change initiated by the Federal Circuit. Now, courts routinely order patent litigation to be bifurcated, with issues of validity and infringement decided in one trial and antitrust and misuse decided in the other.

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