Wednesday, November 30, 2005

Oral argument in Illinois Tool on patentee's presumed market power

Of the presumption of market power, the district court didn't believe in it, the CAFC accepted it as a moth-eaten precedent, and the Justice Department argued against it, so the script seems to be set for the Supreme Court to eliminate the precedent of International Salt v. United States that if a product has a patent, it is presumed to have the requisite “market power” that makes it illegal to “tie” the sale of the patented product to another (unpatented) product. In the present case, Illinois Tool has a patented printhead and unpatented ink. Under the CAFC decision, based on International Salt, Illinois Tool is presumed to have market power, so the defendant Independent Ink did not have to prove that Illinois Tool had market power. If International Salt is reversed, then Independent Ink would have the burden of proving the market power of Illinois Tool.


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