the expiration date; and (2) EPC’s continuing to mark its products with two patent numbers after those patents have expired. Thus, Donaldson is now estopped to assert a patent misuse defense on any other basis, such as EPC’s assertion of a price erosion theory of damages in this action. Although the court will deny EPC’s motion to exclude evidence on the two claims of patent misuse that Donaldson now asserts, the court has considerable doubt that those claims of patent misuse, at least as presently formulated and supported, are submissible. The court observes that Donaldson’s first claim of patent misuse is premised on a “post-expiration royalties” theory authorized by Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964). See Virginia Panel Corp., 133 F.3d at 869 (<HOLDING>). In Brulotte, the Supreme Court addressed a
holding that news broadcast which fell within several of the historical categories for per se defamation was not defamatory per se where plaintiffs identity was not shown on its face recognizing as per se patent misuse arrangements in which a patentee effectively extends the term of its patent by requiring postexpiration royalties citing brulotte 379 us at 33 85 sct 176 holding such agreements to be per se illegal recognizing distinction between actual and per se conflicts of interest holding that a patentees use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se 