This Comment addresses the tensions faced by the Federal Circuit in reviewing the ITC’s patent misuse decisions that address § 337 claims. First, this Comment provides relevant background information by explaining § 337 itself, the administrative power and function of the ITC under § 337, and the Federal Circuit’s jurisdiction and deferential stance to the ITC regarding § 337 appeals. Subsequently, this Comment examines both per se and rule of reason patent misuse defenses, within the context of ITC appeals to the Federal Circuit of § 337 claims, by laying out their doctrinal frameworks as set out by the Federal Circuit in U.S. Phillips Corp. v. ITC.
Balancing Acts: Using a Mixed Test to Ensure Better Results in Rule of Reason Patent Misuse Analysis within Section 337,
15 Marq. Intellectual Property L. Rev. 485
Available at: http://scholarship.law.marquette.edu/iplr/vol15/iss2/8