Nobelpharma AB v. Implant Innovations, Inc.

Abstract

The patent laws, granting a patent owner the right to exclude others from making, using, and selling his invention, uniquely provide immunity from antitrust violation.1 However, having obtained such immunity, the patent owner is obligated to refrain from asserting its rights in an anticom petitive manner or outside the scope of his patent.2 A primary method for a patent owner to legitimately assert his patent rights is to sue alleged in fringers, enjoin the infringing activity, and recover damages for revenue losses caused by the infringement.3 To defend himself in a patent infringement lawsuit, an accused in fringer may attempt to prove the invalidity and unenforceability of the patent in question. The accused infringer may also prove patent misuse, thereby suspending the patent owner's right to recover for infringement until the misuse is corrected.5 Or he may strike back by proving that the patent owner wrongfully asserted a patent in violation of antitrust laws, thereby stripping away his patent-granted immunity from such laws.6 The stakes are high for both parties when a violation of antitrust laws is alleged in an infringement counterclaim. The accused infringer must meet the challenge of proving 1) improper obtainment and assertion of the patent by the patent owner,7 as well as 2) injury as a result of improper