Washington Journal of Law, Technology & Arts


Patrick Holvey


Patent misuse, a once-valuable doctrine used to remove anticompetitive actions enabled by patent grants from the marketplace, has been relatively disfavored by the courts for some time. Recent licensing practices by certain major players within the high-technology marketplace, however, provide an excellent opportunity for the doctrine to be reinvigorated and applied. Apple, Inc., through its attempts to prevent competitors from “cloning” its products, has become an anticompetitive force that appears to have impermissibly leveraged its patent portfolio in order to extract contractual protections of non-patented subject matter through “anti-cloning” provisions, improperly broadening the scope of its patent grants. This Article argues that this improper broadening of the patent grant constrains competition in unpatented subject matter, harms competition, and should be considered by the courts to constitute per se patent misuse or, in the alternative, patent misuse under a rule of reason analysis. As a result, Apple’s patents that are tainted by the anti-cloning provision’s misuse should be held to be unenforceable at least as long as agreements that contain the offending provision are still in force.

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