Patent Misuse and Antitrust Concerns

Summary

This practice note addresses the antitrust principles implicated in the doctrine of patent misuse. A defendant can assert the affirmative defense of patent misuse when it is alleged that the defendant has infringed a patent. A court may find that a patent owner has misused a patent under the doctrine if a defendant shows that (1) the patent owner asserted the patents in a manner that expanded the scope of the patents beyond the boundaries that the federal patent laws have established, and (2) the expansion adversely affected competition in a market. If the defendant proves the patent misuse, the court will deem the patent unenforceable until the patent owner ends the conduct that constitutes misuse.