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Congress has made patent law pursuant to the constitutional power to promote the progress of science by securing, for a limited time to inventors, the exclusive right to their discoveries. Antitrust laws, however, ensure that a free economy best promotes the public wealth, and competition should rule the markets of trade. Occasionally, these two principles intersect; this article will examine one intersection: the issue of tying the sale of two products, specifically when the first product is patented.
Tying occurs when the seller conditions the sale of the tying product on the purchase of the second tied product. According to the Court in 1949, “tying arrangements serve hardly any purpose beyond the suppression of competition.” To date, tying has been challenged under four areas of the law: improper extension of a patent under the patent misuse theory; unfair competition under section five of the Federal Trade Commission Act; contracts which tend to create a monopoly under section one of the Sherman Act; and contracts which tend to create a monopoly under section three of the Clayton Act. This article will focus on the first challengeable area, patent tying. . . .