Where Intellectual Property Stops and Antitrust Starts: Misuse, Tying, Pools, and Refusals to License
By Casey Scott McKay ·
Intellectual property confers a right to exclude and antitrust law constrains how that right is used, and the boundary between them is narrower and more specific than either discipline's practitioners tend to assume. This article works patent misuse - its origins in Morton Salt, its statutory limits, and the narrowing in Princo - and then the antitrust doctrines that reach licensing conduct. It covers tying after Illinois Tool Works removed the presumption of market power, post-expiration royalties under Brulotte as reaffirmed in Kimble, and the narrow duty to deal after Trinko. It then works pools, grantbacks, field restrictions, and resale pricing, and closes with the two routes that convert patent conduct into antitrust liability: Walker Process fraud and sham litigation outside Noerr-Pennington.
IP and Technology > General IP | Article | Published 14 May 2024 - Updated 1 May 2026 | Casey Scott McKay - marksy.us
Summary. Intellectual property confers a right to exclude and antitrust law constrains how that right is used, and the boundary between them is narrower and more specific than either discipline's practitioners tend to assume. This article works patent misuse — its origins in Morton Salt, its statutory limits, and the narrowing in Princo — and then the antitrust doctrines that reach licensing conduct. It covers tying after Illinois Tool Works removed the presumption of market power, post-expiration royalties under Brulotte as reaffirmed in Kimble, and the narrow duty to deal after Trinko. It then works pools, grantbacks, field restrictions, and resale pricing, and closes with the two routes that convert patent conduct into antitrust liability: Walker Process fraud and sham litigation outside Noerr-Pennington.
Keywords: IP and antitrust · patent misuse · Morton Salt · Princo narrowing · tying and market power · Illinois Tool Works · post-expiration royalties · Brulotte and Kimble · refusals to license · Trinko duty to deal · Xerox and Kodak · patent pools · Broadcast Music blanket licences · grantbacks · field of use restrictions · resale price maintenance · Leegin rule of reason · Walker Process fraud · sham litigation · Noerr-Pennington
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