Tabberone is pronounced tab ber won not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me! "The only thing necessary for the triumph of evil is for good men to do nothing" Edmund Burke

This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Lasercomb America v. Job Reynolds, 911 F.2d 970 (4th Cir. 1990)

A. Does a "Misuse of Copyright" Defense Exist? We agree with the district court that much uncertainty engulfs the "misuse of copyright" defense. We are persuaded, however, that a misuse of copyright defense is inherent in the law of copyright just as a misuse of patent defense is inherent in patent law. The misuse of a patent is a potential defense to suit for its infringement, and both the existence and parameters of that body of law are well established. E.g., United States Gypsum Co. v. National Gypsum Co., 352 U.S. 457, 465, 77 S.Ct. 490, 494, 1 L.Ed.2d 465 (1957); see generally 8 E. Lipscomb, Lipscomb's Walker on Patents Secs. 28:32-28:36 (3d ed. 1989) [hereinafter Walker on Patents ]; Calkins, Patent Law: The Impact of the 1988 Patent Misuse Reform Act and Noerr-Pennington Doctrine on Misuse Defenses and Antitrust Counterclaims, 38 Drake L.Rev. 175 (1989) [hereinafter Calkins, Patent Law ]. Although there is little case law on the subject, courts from time to time have intimated that the similarity of rationales underlying the law of patents and the law of copyrights argues for a defense to an infringement of copyright based on misuse of the copyright. E.g., United States v. Loew's, Inc., 371 U.S. 38, 44-51, 83 S.Ct. 97, 101-05, 9 L.Ed.2d 11 (1962); United States v. Paramount Pictures, Inc., 334 U.S. 131, 157-59, 68 S.Ct. 915, 929-30, 92 L.Ed. 1260 (1948); Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 865 & n. 27 (5th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed.2d 601 (1980). The origins of patent and copyright law in England, the treatment of these two aspects of intellectual property by the framers of our Constitution, and the later statutory and judicial development of patent and copyright law in this country persuade us that parallel public policies underlie the protection of both types of intellectual property rights. We think these parallel policies call for application of the misuse defense to copyright as well as patent law.