Patent Nonuse and the Role of Public Interest as a Deterrent to Technology Suppression

Patent nonuse occurs when a patentee fails to commercialize its patent, such as when the patent has no present commercial value or when attempts to license it have been unsuccessful. Patent nonuse may have anticompetitive purposes as well, and will lead to technology suppression when a patented product or process is deliberately withheld from the market by the patentee. This Article explores the phenomenon of patent suppression, examines possible reasons for its occurrence, and discusses potential methods of deterring patent nonuse in general, and technology suppression in particular. First, public reason should be employed to deter suppressive activity by requiring that all patentees file, as a matter of public record, an annual statement that simply indicates whether their patents are being used and, if not, the reasons that the patents are not being used or licensed to others for use. Second, patent nonuse should be given greater evidentiary weight when it is detected as part of other anticompetitive conduct made unlawful under the federal antitrust laws. Finally, the remedy of compulsory licensing should be more readily employed when important public interests are at stake, such as promoting technology competition and innovation or protecting public health and security. However, the public interest must be carefully defined and must be capable of changing as the current economic and social context requires