Jones, Clifford A. --- "Patent Power and Market Power: Rethinking the Relationship between Intellectual Property Rights and Market Power in Antitrust Analysis" [2008] ELECD 252; in Drexl, Josef (ed), "Research Handbook on Intellectual Property and Competition Law" (Edward Elgar Publishing, 2008)

Book Title: Research Handbook on Intellectual Property and Competition Law

Editor(s): Drexl, Josef

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420475

Section: Chapter 10

Section Title: Patent Power and Market Power: Rethinking the Relationship between Intellectual Property Rights and Market Power in Antitrust Analysis

Author(s): Jones, Clifford A.

Number of pages: 19

Extract:

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 long-
standing rule that market power is presumed in cases where a patented prod-
uct 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 conver-
gence 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 ...