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The Insufficiency of Antitrust Analysis for Patent Misuse

51 Pages Posted: 3 Feb 2004  

Robin Feldman

University of California Hastings College of the Law

Abstract

Difficulties at the intersection of patent misuse and antitrust cannot be eased by requiring the application of antitrust rules to test for patent misuse. Nevertheless, in the last decade, the federal Circuit has altered the doctrine of patent misuse by taking this approach. The Federal Circuit's approach is inconsistent with legislative and judicial precedent and threatens to distort both patent and antitrust law. More importantly, using antitrust rules to test for patent misuse is inadequate because the policies underlying patent misuse are not confined to limiting the types of monopoly harms that antitrust recognizes. This article reviews the history of the doctrine of patent misuse and explores the insufficiency of antitrust analysis for promoting patent policy. Finally, the article describes Reach-Through Royalties, a form of licensing for research tools in the biotech industry, to illustrate the problems inherent in testing for patent misuse by applying antitrust law.

Keywords: Intellectual property, patent, patent misuse, antitrust, reach-through royalties, reach-through, reach through royalties, reach through

JEL Classification: K00, K21, 034, 031

Suggested Citation

Feldman, Robin, The Insufficiency of Antitrust Analysis for Patent Misuse. Hastings Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=492443

Robin Feldman (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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