Chapter 24 addresses the misuse of IP as an offense separate from antitrust law (despite its origins in antitrust principles). It begins with Morton Salt v. Suppiger, which established the patent misuse doctrine in 1917. It then examines misuse by tying in detail, including Mercoid v. Minneapolis-Honeywell and the subsequent misuse amendments to the Patent Act. It next moves to misuse by term expansion and the Supreme Court’s decision in Brulotte v. Thys, as most recently affirmed in Kimble v. Marvel. It next addresses potential patent misuse through bundling and the cases involving Hazeltine. The chapter concludes with the expansion of the misuse doctrine to copyright (Lasercomb v. Reynolds).

Chaptr 25 offers a survey of the many ways in which antitrust and competition law affect IP licensing transactions. It begins with a brief overview of US antitrust law and enforcement and distinguishes between per se liability and liability under the rule of reason. It then considers how antitrust authorities have viewed IP transations, beginning with the Nine No-Nos (1970) and more recent agency pronouncements. The chapter then describes specific antitrust doctrines that impact IP transactions: price fixing, market allocation (US v. Topco), resale price maintenance (Leegin v PSKS), tying (Siegel v. Chicken Delight), monopolization (Illinois Tool Works v. Indep. Ink), refusals to deal (The Movie 1 & 2), standard setting (Allied Tube v. Indian Head), reverse payment settlements (FTC v. Actavis).

This chapter considers the role antitrust law can play in safeguarding repair markets and, along with them, the interests of competitors and consumers. While IP law may grants device makers power over their products, antitrust and competition law are designed to impose limits on exclusionary behavior. As a result, they serve as potential bulwarks against tactics that would impede repair. Despite significant doctrinal and policy hurdles to enforcement, antitrust law can help discipline firms that attempt to capture markets for the repair of vehicles, electronics, and appliances that account for hundreds of billions of dollars in annual revenue.