Beyond Hybrid Licenses— Strategies for Post Patent Expiration Payments in the United States

By Patrick Gattari, Steven Ferguson, David Crichton and Bryan Helwig

The United States patent system grants patent holders exclusive rights in their invention for 20 years from the application filing date.2 During the period of exclusivity patent holders often elect to offer licenses in exchange for royalty payments. At the end of the patent term the invention is dedicated to the public and post-patent expiration royalty payments are “unlawful per se” under the 1964 United States Supreme Court holding in Brulotte v. Thys. Co.

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