- Elgar original reference
Edited by Josef Drexl
Chapter 10: Patent Power and Market Power: Rethinking the Relationship between Intellectual Property Rights and Market Power in Antitrust Analysis
10 Patent power and market power: rethinking the relationship between intellectual property rights and market power in antitrust analysis Clifford A. Jones 1 Introduction – Spilled ink: the Supreme Court, patent tying, and presumptions of market power On 1 March 2006, the Supreme Court of the United States decided in Illinois Tool Works, Inc. v. Independent Ink, Inc.1 that it would abandon its longstanding rule that market power is presumed in cases where a patented product is tied to the purchase of unpatented products in a tying arrangement giving rise to claims under the Sherman and Clayton Antitrust Acts. Speaking for a unanimous Supreme Court, Justice Stevens stated: 2 Congress, the antitrust enforcement agencies, and most economists have all reached the conclusion that a patent does not necessarily confer market power upon the patentee. Today, we reach the same conclusion, and therefore hold that, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product. In so ruling, the Supreme Court both brought an end to an arguably unhealthy intertwining of patent law and antitrust law that had existed since the early twentieth century and simultaneously brought about a new convergence of antitrust tying law and the law of patent abuse. Whether this results in an improvement in antitrust tying law is open to question,3 but indisputably there is a new or restored alignment with regard to the role of market power in both antitrust tying and the law of...
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.