Tying arrangements, sometimes known as “ties,” “tie-ins,” “tied-in sales,” or “bundles,” occur when a firm offers two separate products together, refusing to sell one of them without the other. Identifying when two things are really a single product—such as a shirt and its buttons or an automobile and its tires—has proven controversial. The dominant position looks at ordinary business practices in order to determine whether the products are commonly sold separately. Competitive harm is a threat in a very few situations involving actual market foreclosure or the use of ties to enable dominant firms to retain their market position as one technology rolls into the next. As a result, the so-called per se rule for tying is wrongheaded and ties should be addressed under the rule of reason, with fairly substantial proof requirements on challengers.
Economic analysis of patent law frequently begins with the assertion that patents present a social tradeoff between providing incentives for innovation at the expense of accepting the deadweight loss associated with monopoly-like exclusive rights."); Michael J. Burstein, Exchanging Information Without Intellectual Property, 91 TEX. L. REV. 227, 276 (2012) ("The classic economic analysis of intellectual property posits a tradeoff between static costs and dynamic benefits."); Gideon Parchomovsky & Peter Siegelman, Towards an Integrated Theo
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