The Uses of IP Misuse

The equitable doctrine of misuse emerged as a tool to police intellectual property owners¿ overzealous contracting and enforcement behavior. First in patent law and then in copyright, courts developed the misuse doctrine to scrutinize practices that expanded intellectual property rights in socially disadvantageous ways. In recent years, patent misuse doctrine has essentially gone the way of antitrust¿narrowing its focus to a thin sliver of anticompetitive harms. Copyright misuse doctrine, however, has remained attentive to broader intellectual property policy concerns.

Courts have, for example, responded to misuse arguments where a copyright owner¿s licensing or enforcement behavior threatens to deter innovative activity or socially valuable speech. Although trade secret owners engage in similar practices, courts have not developed an analogous trade secret misuse doctrine. This Article takes the first close look at the justifications for introducing a trade secret misuse doctrine¿and considers how copyright misuse provides a template for reform.