On January 25, 2005, the CAFC decided the case of Independent Ink, Inc. v. Illinois Tool Works, Inc., holding that market power will be presumed in a tying agreement whenever a tying product is patented. This rule puts patent holders at a disadvantage, and will increase the amount of antitrust lawsuits brought against patent holders and holders of other exclusive intellectual property rights. Indeed, this rule conflicts with the intended effect of antitrust law. This comment proposes that tying agreements involving a patented product be evaluated the same way as all other tying agreements, and that the presumption of market power, a dispositive factor in antitrust cases, for patented products be eliminated.
Alison K. Hayden, Patent Tying Agreements: Presumptively Illegal?, 5 J. Marshall Rev. Intell. Prop. L. 94 (2005)