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Can conduct that is anticompetitive not be considered "misuse"?

1/17/2017

 
Yes. For instance, it is not misuse to grant only a limited number of licenses to a patent, to grant no licenses to a patent, or to completely suppress an invention by neither practicing it nor licensing it.  Morton Salt Co. v. G.S. Suppiger, 314 U.S. 488, 493-94  (1941). It is up to the patentee to determine whether the invention will be exploited during the term of the patent. 

Note, however, that there have been a few outlier cases where the courts have found this result to be so injurious to the public welfare that they have refused to enjoin infringement.  Rite-Hite Corp. v. Kelley Co., 56 F.3d at 1547-48. 

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