In January of this year, we alerted clients to the potential implications of Princo Corporation v. International Trade Commission, in which the Federal Circuit, sitting en banc, would decide whether an agreement among patent pool participants not to license a competing technology constitutes patent misuse even in the absence of evidence of anticompetitive effects.1 As we explained, the en banc decision could significantly impact the formation of patent pools in particular and the scope of the patent misuse doctrine in general. Not surprisingly, the case attracted a number of amici, including the Federal Trade Commission, the American Intellectual Property Law Association, the American Antitrust Institute, and the Intellectual Property Owners Association.

On August 30, the en banc court issued its decision,2 substantially narrowing the patent misuse doctrine, providing guidance to patent pools, and continuing to stress the procompetitive aspects of standard-setting. Thus, the case has significant implications not only for patent pool participants, but for patent infringement litigants in general. Given the relationship between patent misuse and antitrust doctrine, the case also has implications for the intersection of intellectual property and antitrust.