More We Can Do: Potential New Policy Levers

in The Patent Crisis and How the Courts Can Solve It

Published by University of Chicago Press

Published in print May 2009 | ISBN: 9780226080611
Published online March 2013 | e-ISBN: 9780226080635 | DOI:
More We Can Do: Potential New Policy Levers

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This chapter evaluates several potential policy levers. It highlights that there are costs as well as benefits to the use of these policy levers, and that it may not make sense to use all of them. The Federal Circuit could use the presumption of validity as a policy lever. Patent misuse can take one of two basic forms. First and most commonly, a patent is misused if it is employed to violate the antitrust laws. Second, even absent anticompetitive effect, a patentee may commit misuse by expanding the patent beyond its lawful scope in certain ways that are deemed illegal on their face. It is noted that Congress can and should facilitate judicial use of policy levers by giving courts the flexibility to take industry-specific differences into account.

Keywords: policy levers; Federal Circuit; patent misuse; Congress; courts

Chapter.  4607 words. 

Subjects: Intellectual Property Law

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