Empirical, Doctrinal and Policy Perspectives
Chapter 8: Conclusion
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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