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Publication Date

5-2007

Document Type

Comment

Abstract

It is increasingly common for businesses to sell products that are protected by a patent. But what happens when the company markets a bundle of products where some products are protected by patents, but others are not? Under well-settled antitrust jurisprudence, such marketing typically would raise antitrust concerns as a tying arrangement only where there are at least two separate products, the company has market power over one of the products, and the company requires that customers buy one or more additional products as part of a bundle.

In Illinois Tool Works Inc. v. Independent Ink, Inc., the United States Supreme Court grappled with the issue of whether the existence of patent protection over one product created market power in that product market such that the presence of market power is presumed for patent elements of a tying violation under § 1, including defining a market to evaluate the tying arrangement and showing that the defendant has market power in that market.

This Comment explores the recent decision of Illinois Tool Works and how that decision reversed the rule of per se illegality for patent tying arrangements in antitrust law. Parts II and III outline the evolution of the per se rule for patent tying arrangements and the problems associated with the per se approach. Part IV examines the Illinois Tool Works history and the facts that led to the Supreme Court's rejection of the per se rule in favor of a rule of reason approach for patent tying arrangements. Finally, Part V discusses the positive and negative implications that may result from the adoption of the rule of reason approach.

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