미국 반트러스트법상 특허권 및 노하우의 끼워팔기

A tying arrangement is defined as an agreement by one party to sell a tying item but only on the condition that the purchaser also purchase a tied item from seller. Frequently intellectual property owners are also interested in tying arrangement by license their technologies. Tying agreements in patent and know-how area can be challenged under the standard of the Sherman Act "rule of reason." However tying restrictions have been challenged using a simplified analysis developed by the Supreme Court under §3 of the Clayton Act and §1 of the Sherman Act. This analysis requires proof of four basic elements. First,it must be established that the tied item entails a product or service separate from that of the tying item. Second, it must be proven that an actual tie exists. Third, it must be shown that the party imposing the tie has sufficient economic power in the market for the tying item to appreciably restrain competition in the market for the tied item. Finally,it must be established that a not insubstantial amount of commerce in the tied item has been affected by the tie.