Joshua D. Wright*
The Supreme Court’s opinion in Illinois Tool Works Inc. v. Independent Ink, Inc.1 is unequivocally good for consumers and eminently sensible. The decision rejects the presumption of antitrust market power in patent tying cases. The presumption is at odds with the longstanding consensus among antitrust scholars,2 Congress,3 and the antitrust agencies4 that patents do not confer antitrust monopoly power. There is virtually no authority defending the proposition, and rightly so. While some have argued that the Court’s previous decisions never created a presumption that patents confer market power, that particular debate is largely academic at this point.5 The
* Assistant Professor, George Mason University School of Law. The George Mason Law and Economics Center generously provided financial support. I thank Daniel Crane and Bruce Kobayashi for comments and Brandy L. Wagstaff for research assistance. All errors are my own.
1 Illinois Tool Works Inc. v. Independent Ink, Inc., 126 S. Ct. 1281 (2006), rev’g 396 F.3d 1342 (Fed. Cir. 2005).
2 See, e.g., 10 Philip E. Areeda et al., Antitrust Law ¶ 1737a (2d ed. 2004); 1 Herbert Hovenkamp et al., IP and Antitrust: An Analysis of Antitrust Principles Applied to Intellectual Property Law § 4.2 (“an intellectual property right does not confer a monopoly”); Richard A. Posner, Antitrust Law 97–98 (2d ed. 2001) (“most patents confer too little monopoly power to be a proper object of antitrust concern”).
3 See 35 U.S.C. § 271(d)(4), (5) (amending patenting laws to mandate proof of market power in the tying product in the patent misuse context).
4 See U.S. Department of Justice and Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property § 2.2 (Apr. 6, 1995) (enforcement agencies will “not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner”).
5 See, e.g., Brief for the United States as Amicus Curiae Supporting Petitioners at 18–25, Illinois Tool Works Inc. v. Independent Ink, Inc., 126 S. Ct. 1281 (2006) (No. 04–1329); Kevin D. McDonald, Moving Forward While Facing Backward: Illinois Tool Rejects the Presumption of Market Power in Tying Cases, 20(3) Antitrust 33 (Summer 2006), for an exposition of this view. Also unsatisfied with the holding, though for different reasons, McDonald also characterizes Independent Ink as an “opportunity lost.” Specifically, McDonald criticizes the decision for failing to provide guidance with respect to the law of tying: “If Justice Stevens had devoted half the time and energy he lavished on defending his own dictum from Hyde to explicating the law