The plaintiff's illegal extension of a patent right has historically been a successful defense to a patent infringement claim. Recently, the illegal extension of a monopoly right or "misuse" defense has been applied to copyright and trademark infringement claims as well. This article discusses the utilization of the misuse defense in patent, copyright, and trademark cases. It explores the case history of the misuse defense and summarizes the elements to the defense in each area.
Alan R. Geraldi,
Misuse: An Equitable Defense to Intellectual Property Infringement Actions,
14 Hastings Comm. & Ent.L.J. 235
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol14/iss2/2