The Economic Irrationality of the Patent Misuse Doctrine

Abstract

This Comment evaluates the economic effects of the patent misuse doctrine.The patent misuse doctrine is an equitable remedy analogous to the “uncleanhands” doctrine in tort law. It bars infringement suits by patentees whohave “misused” their patent grant, either by using the patent to violatethe antitrust laws or by extending their patent monopoly in some other way.The author first describes the nature and scope of antitrust protection inthe patent area, and contrasts the antitrust laws with the patent misusedoctrine. Next, the author argues that the patent misuse doctrine isirrational from an economic standpoint for three reasons: the level ofsanction is unrelated to the injury caused; the sanction duplicatesantitrust remedies, leading to excessive recoveries; and the sanction isawarded as a windfall to the patent infringer even if that party was notinjured by the misuse. These effects combine to make the patent misusedoctrine indefensible from the standpoint either of proportionality or ofdeterrence. Finally, the author reviews recent legislative efforts toreform the patent misuse doctrine and argues that they are misguidedbecause they fail to deal with the fundamental problems described herein.The author concludes that the patent misuse doctrine ought to be abolished,and that the antitrust laws can serve the same purposes that the patentmisuse doctrine was designed to serve.