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All Tied Up: Independent Ink, Inc. v. Illinois Tool Works, Inc. and Trident, Inc.
On June 20, 2005, the Supreme Court granted certiorari in an important case for intellectual property holders seeking to navigate the sometimes-conflicting dictates of patent and antitrust law. In Independent Ink, Inc. v. Illinois Tool Works, Inc., and Trident, Inc., 396 F.3d 1492 (Fed. Cir. 2005), the U.S. Court of Appeals for the Federal Circuit held that a patent establishes a rebuttable presumption of market power in a tying case brought under Section 1 of the Sherman Act. The ruling has put the Federal Circuit at odds with several lower courts, the Antitrust Division of the Department of Justice, the Federal Trade Commission and a host of academic critics, each of which maintain that patent rights do not, by themselves, give rise to an inference of market power, and that any rule to the contrary has the potential to reduce legitimate incentives to innovate.
The Federal Circuit's ruling has been widely criticized because it makes it easier to bring tying suits against intellectual property holders, thereby further complicating life for companies already ensnared in various patent thickets. Moreover, because the Federal Circuit has taken a particularly expansive view of its own jurisdiction, the ruling in Independent Ink has a potentially greater impact on the law of tying than would a ruling by any other Court of Appeal.
Tying is regulated by the antitrust laws and may violate Section 1 of the Sherman Act where the practice serves to diminish competition in the sale of one of the bundled products by tying the sale of one product to the sale of the other. Such tying is illegal where the bundler has market power in one product (the “tying product”) and conditions its purchase on the purchase of a separate, unwanted product (the “tied product”). Under the traditional law of tying, a tying plaintiff can establish a violation of Section 1 if it can demonstrate: 1) the existence of two separate products; 2) that the defendant conditions the sale of the desired (tying) product on the sale of a second (tied) product; 3) that the arrangement affects a substantial volume of interstate commerce; and 4) that the defendant has market power in the market for the tying product. Of course, traditionally, tying is a per se offense; if the plaintiff can demonstrate the above elements, there is no need for a court to further analyze whether the defendant's practice negatively affected the market or whether the defendant proffered legitimate pro-competitive justifications for its bundle.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?