Plaintiff's license agreements did not constitute patent misuse even though they contained provisions "(1) providing for a post-expiration marking requirement (i.e., requiring licensees to mark expired patent numbers on their products); (2) requiring post-expiration supply obligations (i.e., requiring the licensees to buy [plaintiff's] products after the patents-in-suit expired); (3) providing for an undiminishing royalty rate (i.e., not decreasing the royalty rate the licensee paid for licensing both patents in suit after [one of the patents expired]); and (4) including a potential retroactive royalty increase (i.e., the royalty rate paid by the licensee could increase from 3% to 5% after expiration of the patents, depending on what happened up to five years after the [last] patent expired . . . )." "Because [defendant] has not established that any of the complained-of limitations in [plaintiff's] licensing agreements constitute patent misuse, either per se or under a 'rule of reason' analysis, the court will deny [defendant's] claims."
Hearing Components, Inc. v. Shure, Inc., 9-07-cv-00104 (TXED March 26, 2009, Memorandum & Order)