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The Supremes granted certiorari in Illinois Tool Works v. Independent Ink, Inc., in which the Federal Circuit ruled that the existence of a patent over a "tying" product creates a rebuttable presumption that the patent holder possesses market power with respect to it.
In other words, the mere existence of a patent shifts the burden to the patent holder to disprove market power.
This is an unusually silly legal doctrine, since few patents indeed grant any appreciable degree of market power. But the Supreme Court did once say, in U.S. v. Loew's (1962):
[A] patent presumptively defines the relevant market as the nationwide market for the patented product itself, and creates a presumption of power within this market. Once the plaintiff establishes a patent tying agreement, it is the defendant’s burden to rebut the presumption of market power and consequent illegality that arises from patent tying. So one can see why the Federal Circuit might have thought it should take the idea seriously, even if a few other circuits have dismissed this rule as the blatant nonsense that it is.
The 1960's constituted the lowest point in antitrust doctrine -- a field that has had no high points, by the way; only low, lower, and lowest. Citing a 1962 Supreme Court antitrust statement is sort of like bringing out a photo album of your parents wearing their 1960s beads and haircuts.
The AIPLA and the IPO supported the cert petition.
posted by James DeLong @ 12:20 PM | Patents
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