As of October 31, 2013, the Project on Commercializing Innovation is no longer active.
The Project is succeeded by the Hoover IP² Working Group on Intellectual Property, Innovation, and Prosperity. Hoover IP²

Chapter Nine – Defenses and Limitations

As with all causes of action, there are defenses and limitations to patent infringement.  Because infringement is a strict liability tort, most defenses focus on the behavior of the patentee rather than that of the alleged infringer (e.g., inequitable conduct and patent misuse).

The intersection of patents and antitrust is a topic of special importance because both areas of law are ultimately concerned with promoting competition.  As a result, courts often turn to the executive branch for guidance on this issue, as the Federal Circuit did in Nobelpharma.  For more recent analysis by the Department of Justice and the Federal Trade Commission, read the 2007 report on Antitrust Enforcement and Intellectual Property Rights.


  1. The America Invents Act granted the Federal Circuit jurisdiction over all appeals based on a civil action “in which a party has asserted a compulsory counterclaim under any Act of Congress relating to patents.”  28 U.S.C. § 1295.  This modifies the rule in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002).  However, it only applies to cases in which the complaint was filed after the effective date of that part of the AIA.  Wawrzynski v. H.J. Heinz Co. (Fed. Cir. Sept. 6, 2013).


 Additional Source Material