Oral argument in Marvel suggests Brulotte will survive
Ronald Mann's discussion of oral argument in Marvel suggest bad news for arguments made by
Melnik repeatedly offered the only answer he had, the consensus of informed economic analysts that the rule has no justification in economic analysis. Unfortunately for Melnik, Breyer regarded that response as wholly evasive, and so returned again and again, with apparently increasing irritation to his original inquiry:
My simple question was how you reconcile the fact that everybody is paying a lot of money to use this intellectual property [after the patent expires] with what seems a statute and a Constitution that say it should be free at the time. That’s what I’m asking. I don’t want to ask it again because I don’t like to ask a question more than four times.
Ronald Mann, Argument analysis: Justices apparently dubious about overturning long-standing precedent on patent misuse, SCOTUSblog (Apr. 2, 2015, 1:24 PM), http://www.scotusblog.com/2015/04/argument-analysis-justices-apparently-dubious-about-overturning-long-standing-precedent-on-patent-misuse/
One might extrapolate this to certain arguments made by Bessen / Meurer about patent trolls.