The Author argues that the patent misuse doctrine should be eliminated. Created almost a century ago as a response to patent power, it has now not only outlived its purpose but causes affirmative harm. Other more nuanced approaches, including antitrust law, produce superior results. Although the Federal Circuit has contained the doctrine, it cannot overrule Supreme Court misuse precedent. Accordingly, the Court should abolish the doctrine at the earliest opportunity or, failing prompt action, Congress should add the matter to its ongoing patent reform agenda. The misuse experience also provides valuable insights regarding how we can appropriately live with our patent regime. It clarifies that the instinct to punish patent owners whenever their actions cause discomfort will only serendipitously produce a desirable outcome. Instead we must first confirm the complaint reflects a legitimate policy concern, either improper implementation or disagreement with the goals we have set for patent law and then, ensuring not to conflate the former with the latter, make the related adjustments.
Living with Patents: Insights from Patent Misuse,
15 Marq. Intellectual Property L. Rev. 1
Available at: http://scholarship.law.marquette.edu/iplr/vol15/iss1/2