Illinois Tool Works v. Independent Ink: A Lawyer’s Take on Ending Special Suspicion of Patent Tying

Richard Taranto, Nov 01, 2006

The U.S. Supreme Court’s decision in Illinois Tool Works, Inc. v. Independent Ink, Inc., holds that a plaintiff, when asserting a tying claim under the familiar modified per se rule requiring market power for liability, must affirmatively prove such power even if the defendant owns a patent covering the tying product. Answering the specific question presented to it, the Court thus took the important step of abandoning an earlier presumption of market power in such circumstances. The contribution of the Court’s opinion to antitrust law, however, does not stop there. The Court’s opinion provides several additional lessons for those who live and litigate under the U.S. antitrust laws. The lessons are both substantive (about the content of antitrust rules and standards) and methodological (about the proper approach to deciding antitrust cases). As with any individual Supreme Court decision in a body of ever-changing common-law-like doctrine, aspects of the Court’s analysis leading to the specific holding supply material, of varying strength and solidity, that lawyers must consider and use when analyzing and litigating antitrust issues.