The doctrines of patent exhaustion, or first sale, and patent misuse are generally only considered affirmative defenses to patent infringement claims. However, under case law, where patent misuse caused or threatened injury to an entity, that entity may assert misuse as an independent claim. Moreover, several recent precedents indicate that patent exhaustion or misuse may also be affirmative claims, and litigators should consider them when making claims in a patent dispute in which misuse or exhaustion/first sale may be involved. This article discusses these recent developments.
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