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by Despegar
2573 days ago
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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. |
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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.