[DannyBee]

"Nope. Courts have been subjecting tying to rule of reason analyses for a while now."

This is not quite right. You are right that i removed some nuance, which, imho, would not matter much in this particular case but might matter in others.

Your cites are about the presumption of market power, which is not the same as rule of reason analysis in full. It's definitely part of it.

It's definitely true courts are "less per-se". But even illinois tool works is about whether the market power presumption could be rebutted, not about whether the effect was to restrain trade. They still only require a showing of market power.

Your cites even say that, with the illinois toolworks one explicit saying that if they can show market power, partial summary judgement on liability should be granted.

The more interesting part of the rule of reason is about the latter (restraint of trade) more than the former (market power)

Wikipedia even agrees with what i said https://en.wikipedia.org/wiki/Rule_of_reason, see the last section.

" Further, the Court retained the per se rule against tying contracts but raised the threshold showing of market power that plaintiffs must make to satisfy the rule's requirement of "economic power" (see Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1985).[2]".

The square cite from ITW is "Held: Because a patent does not necessarily confer market power upon the patentee, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product. "

(IE they just have to show market power)

You can see basically all courts have followed this since.

[Despegar]

Edit: My above comment was originally mistakenly copied from the Federal Circuit, not the Supreme Court decision.

>The Court held that in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product. While some such arrangements were still unlawful, such as those that were the product of a true monopoly or a market-wide conspiracy, that conclusion had to have been supported by proof of power in the relevant market rather than by a mere presumption thereof. The court recognized that many tying arrangements, even those involving patents and requirements ties were fully consistent with a free, competitive market.

https://www.lexisnexis.com/lawschool/resources/p/casebrief-i...

[DannyBee]

This is a lexis case brief for law school students, not a scotus holding? Probably not what you would rely on for real.

The entire decision text is here: https://supreme.justia.com/cases/federal/us/547/28/ You'll note your quote does not appear there.

I mean, at some point you may just have to trust me since I specialize in this area of law, among others :)

The state of the world on tying is specifically "If you can show these X things, it will be per-se illegal, regardless of reason". If you can't, it won't be, and will be analyzed under rule of reason.

But i understand if you want to think otherwise.

(And i'll admit i'm too lazy to go look up recent appeals court cases on tying for you right now)

[Despegar]

I updated the original comment. It's pretty clear.

>Congress, the antitrust enforcement agencies, and most economists have all reached the conclusion that a patent does not necessarily confer market power upon the patentee. Today, we reach the same conclusion, and therefore hold that, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product.

[DannyBee]

Again, you are repeatedly confusing market power and the rest of per-se illegality vs rule of reason.

Per-se vs rule of reason is much more about whether you can show that there was a pro-consumer reason to do something, or whether it is illegal regardless of reason.

It happens that a lot of per-se illegality in antitrust also did not require a showing market power, either (which is what changed in case you are citing). All you had to show was an arrangement exists at all, regardless of market power.

As i've said several times now, and even the cases you cite confirm, while you must prove market power (and a small number of other things, actually) in per-se tying, IF YOU DO, it is illegal.

It does not matter if you were doing it for a pro-consumer reason or not, the court will not hear evidence on it.

I'm really unsure why you are armchair lawyering this.