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. 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.1
The United States Supreme Court established the underlying "unclean hands" principle of the patent misuse doctrine in Motion Picture Patents Co. v. Universal Film Mfg. Co.2 The specific rule that similar misuse of a patent is a defense to an infringement suit comes from Morton Salt Co. v. G.S. Suppiger Co.,3
Most types of misuse can be "purged" by abandoning the practice and causing its effects to dissipate.4 Fraud or inequitable conduct in patent procurement, however, is not purgeable.
|“||No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following:
- See 35 U.S.C. § 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).
- 243 U.S. 502 (1917) (holding unenforceable a restriction that a user of a patented film projector must use it to screen only such films as the patentee authorized).
- 314 U.S. 488 (1942) (tie-in between patented salt dispenser machine and unpatented salt).
- See United States Gypsum Co. v. National Gypsum Co., 352 U.S. 457 (1957); B.B. Chem. Co. v. Ellis, 315 U.S. 495 (1942).
- Copyright misuse
- Inequitable conduct
- Patent ambush
- Patent troll
- Submarine patent
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