Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Supreme Court has agreed to consider overturning a 43-year-old precedent that makes it easier for competitors to sue patent holders for antitrust violations. In taking the case of Illinois Tool Works Inc. v. Independent Ink Inc. on June 20, the Court was responding to pleas by major patent holders as well as the American Intellectual Property Law Association and the American Bar Association. Recently, R. Hewitt Pate, then the assistant attorney general for antitrust, said the case provided a “good opportunity” to resolve an important antitrust issue. Andrew Pincus of the D.C. office of Mayer, Brown, Rowe & Maw, who represents Illinois Tool, informed the Court of Pate’s June 3 speech. “This is an important case at the intersection of patent and antitrust law,” says Pincus. “It is increasingly significant as our economy is driven more and more by intellectual property.” Under the Supreme Court’s 1962 ruling in United States v. Loew’s Inc., the fact that a defendant holds a patent on a product creates a presumption that it exerts enough power over the marketplace to be guilty of illegal “tying” under the Sherman Act. Illegal tying occurs when a company requires customers who want a highly desired product to buy another, less-desired product as well. The presumption makes it easier to bring tying claims when the defendant holds a patent on the first product. Illinois Tool Works is accused of requiring customers to buy its ink when they buy its patented “printheads,” which are used to apply bar codes onto packaging. Independent Ink, which markets compatible inks, brought a tying claim, invoking the Loew’s precedent. A judge in the U.S. District Court for the Central District of California sided with Illinois Tool, but the U.S. Court of Appeals for the Federal Circuit reversed. Appeals Judge Timothy Dyk wrote that even if Loew’s rests on “wobbly, moth-eaten foundations” that have been overtaken by market realities, the Federal Circuit is still bound by the precedent. Dyk added that it is up to the Supreme Court to overturn one of its precedents, and up to Congress to change the law if it wants to. In his brief for the AIPLA, Patrick Coyne of D.C.’s Finnegan, Henderson, Farabow, Garrett & Dunner said the Federal Circuit ruling conflicts with decisions by the 6th and 7th circuits, a conflict that reflects growing disagreement over the basis of the presumption. “The mere issuance of a patent does not convey market power in a relevant market, except in very rare cases,” Coyne wrote.
Tony Mauro is the Supreme Court correspondent for Legal Times , an ALM publication.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.