Antitrust Law Basics: A Primer on Patent and Copyright Misuse
Posted: Thursday, Nov 17, 2011 @ 5:30 am | Written by Gene Quinn | 5 comments|
Posted in: Antitrust, Business, Gene Quinn, IP News, IPWatchdog.com Articles
Earlier this month the United States District Court for the Eastern District of California extended the copyright misuse doctrine to the benefit of Costco, finding that an overzealous manufacturer of watches was attempting to use a copyright on a small logo stamped onto its watches to prohibit the resale of lawfully purchased watches by Costco. See Costco Prevails in First Sale Case Thanks to Copyright Misuse. Misuse defenses, such as copyright misuse and patent misuse, have historically be applied sporadically at best. This may be because misuse has been frequently found only when there is an underlying Antitrust violation. That is, however, not a prerequisite. A misuse defense is really about the unjustified extension of either a copyright or patent beyond the legitimate boundaries of the property right.
With copyright misuse having recently been successful in a rather high profile case I thought it would be worthwhile to revisit patent misuse and misuse concepts generally. To do that in a way that allows the casually interested reader to follow along probably requires first taking a step back away from the intellectual property centric theories to discuss some basic antitrust law concepts. This seems particularly appropriate since many of the misuse cases have a distinct antitrust flavor.
On Monday, December 13, 2010, the United States Supreme Court issued a non-decision in the matter of Costco Wholesale Corporation v. Omega, S.A. The 
