Competition Law, Innovation and Antitrust

Competition Law, Innovation and Antitrust

An Analysis of Tying and Technological Integration

New Horizons in Competition Law and Economics series

Hedvig Schmidt

This innovative book assesses the hotly debated topic of tying from three different perspectives: competition law, economics and intellectual property rights. It highlights the faults and benefits of the current approaches to tying under EC competition law and US antitrust law.

Chapter 4: Tying Arrangements under US Antitrust Law

Hedvig Schmidt

Subjects: law - academic, competition and antitrust law, intellectual property law


1. INTRODUCTION US antitrust law has had 120 years to develop. This naturally means that there is an extensive amount of case law and shifting attitudes to tying arrangements taken by the US courts over the decades. However, as this chapter is not a historical account, only cases which have a bearing on the current legal situation will be dealt with in detail. US antitrust law is built upon two main statutory provisions: sections 1 and 2 of the Sherman Act (hereafter Section 1 and Section 2).1 The former restricts all contracts or combinations or conspiracies between persons; the latter prohibits any monopolisation or attempt to monopolise. EC competition law’s main Articles may appear limited in their wording and lacking in explanation for their application. Sections 1 and 2 offer even fewer hints. Much weight has therefore been put upon the shoulders of the courts to establish judicial standards which fulfil the goals of the antitrust policy.2 In response, the courts developed the infamous illegal per se and the rule of reason standards.3 In particular, the former has very much shaped the current attitude to tying arrangements. Two more pivotal Acts, the Federal Trade Commission Act4 and the Clayton Act,5 play a role in the regulation of tying arrangements. In other Sherman Act Section 1 and Section 2 (1890), 15 U.S.C. §1 and §2 Bork, Robert H., The Antitrust Paradox: A Policy at War with Itself (The Free Press, New York, 1993), pp. 72, 73–74 and Brief...

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