The Insufficiency of Antitrust Analysis for Patent Misuse

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 provides a theoretical discussion of the insufficiency of antitrust analysis for promoting patent policy. In addition, the article analyzes 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.