The US Supreme Court, faced with the question on "[w]hether, in an action under Section 1 of the Sherman Act, 15 U.S.C. Â§ 1, alleging that the defendant engaged in unlawful tying by conditioning a patent license on the licensee's purchase of a non-patented good, the plaintiff must prove as part of its affirmative case that the defendant possessed market power in the relevant market for the tying product, or market power instead is presumed based solely on the existence of the patent on the tying product" in ILLINOIS TOOL WORKS INC., ET AL. V. INDEPENDENT INK, INC., found that "in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product" and vacated the decision of the Court of Appeals that held that "a rebuttable presumption of market power arises from the possession of a patent over a tying product".
While it seems that the Department of Justice's amicus is correct when notes that "a market participant's possession of a patent right, and the consequent statutory right to exclude infringing products from the market place, cannot give the participant market power if-as is usually the case- there are noninfringing alternatives to the patented product that qualify, in the economic sense, as good substitutes." However, it (un)surprisingly missed the fact that the possibility of producing noninfringing alternatives depends on the precision of the claims, and it is a proven fact that the USPTO approves more and more patents with very general, vague and ambiguous claims. But of course, one will have to go to court to establish that...and that is what the patent holders want...but wasn't the DoJ Antitrust Division's job to ensure that monopolies are not formed? Why to use time and resources to defend a patent holder? Isn't that ultra vires?