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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. 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.
Statutory limitation
The scope of the patent misuse doctrine is today limited by 35 U.S.C. § 271(d):
| “ | 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:
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References
- ^ 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).
See also
- Biopiracy
- Copyright misuse
- Evergreening
- Inequitable conduct
- Patent ambush
- Patent troll
- Submarine patent
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