Patent owners have considerable freedom to negotiate the subject matter, price, and term in licensing agreements. However, antitrust law has been used to limit this freedom when an arrangement is considered to exceed the statutory patent rights and produce anticompetitive effects. Consequently, it has been considered “black letter law” for fifty years that a patent owner cannot attempt to obtain royalties in a pure patent license after all licensed patents have expired, and certain tying arrangements in patent or other agreements have long been frowned upon.
Recent developments in this area are challenging both doctrines. Can a patent owner charge royalties even after patent expiration, in instances where a separate statutory scheme provides a licensable right? Although a royalty step-down at patent expiration is good practice, it may no longer be required in all cases. Can a patent owner engage in package licensing for wanted and perhaps unwanted patents, for example, a group of standard-essential and nonessential patents? These and other issues are addressed below.
Originally published in the AIPLA Antitrust News.
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