Patent misuse

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In United States patent law, patent misuse is an affirmative defense used in patent litigation when a defendant has been accused to have infringed a patent. It has also been used to mitigate damages following a finding of infringement or justify a failure to pay contracted-for royalties. This umbrella term usually describes any of the following:

  • a violation of antitrust laws
  • improper expansion of the scope or term of the patent
  • inequitable conduct in the procurement or enforcement of a patent (sometimes termed "non-purgeable misuse").

In the United States, a patent is a statutory right that grants the patentee the right to exclude others from making, using, or selling a patented invention. <!-- ] Historically, courts were willing to entertain a patent misuse defense for patent owners who never undertook any commercial use and solely sought out infringers. Recent decisions have held --> Under current U.S. patent law it is not patent misuse simply to enforce rights to a patent, in good faith, and enforcement is permissible irrespective of any use or non-use by the owner.See 35 U.S.C. ยง 271(d)(4); Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176 (1980). "Sham" or bad-faith patent enforcement--i.e., without belief that the claim is meritorious--however, can give rise to liability. See Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993).

The United States Supreme Court...
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