The Trouble with Brulotte: The Patent Royalty Term and Patent Monopoly Extension

Posted: 6 Aug 2014

See all articles by Harold See

Harold See

Belmont University - College of Law

Frank Caprio

Independent

Date Written: 1990

Abstract

The Brulotte rule incorrectly assumes that a patent license has significance after the patent terminates. When the patent term ends, the exclusive right to make, use or sell the licensed invention also ends. Because the invention is available to the world, the license in fact ceases to have value. Presumably, licensees know this when they enter into a licensing agreement. If the licensing agreement calls for royalty payments beyond the patent term, the parties base those payments on the licensees' assessment of the value of the license during the patent period. These payments, therefore, do not represent an extension in time of the patent monopoly.

Keywords: patent, Brulotte v. Thys Co., patent royalty term, patent monopoly extension

Suggested Citation

See, Harold and Caprio, Frank, The Trouble with Brulotte: The Patent Royalty Term and Patent Monopoly Extension (1990). Utah Law Review, 1990 Utah L. Rev. 813 1990. Available at SSRN: https://ssrn.com/abstract=2476430

Harold See (Contact Author)

Belmont University - College of Law ( email )

1900 Belmont Boulevard
Nashville, TN 37212
United States

Frank Caprio

Independent ( email )

No Address Available

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