Courts and the Justice Department’s Antitrust division have become increasingly tolerant of patent licensing practices that were previously viewed with suspicion. This trend has put pressure on the doctrine of patent misuse, which arose in the 1940s as a doctrine distinct from, but closely related to, standard antitrust analysis. The U.S. Court of Appeals for the Federal Circuit recently overturned an International Trade Commission order that held unenforceable, on the grounds of patent misuse, six patents licensed as a package by U.S. Philips Corporation. The Federal Circuit’s decision raises the question of just how much remains of the doctrine of patent misuse.
Daniel P. Homiller, Patent Misuse in Patent Pool Licensing: From National Harrow to “The Nine No-Nos” to Not Likely, 5 Duke Law & Technology Review 1-21 (2006)