KSR and the Supreme Court: the silence is deafening.(Symposium: A Continuing Symposium on Antitrust and the Roberts Court)

One of the uses of history is to free us of a falsely imagined past. The less we know of how ideas actually took root and grew, the more apt we are to accept them unquestioningly, as inevitable features of the world in which we move. One reason for the stifling solidity of received opinion about antitrust, why counterargument makes so little headway, is that most of us accept our first principles and even our immediate premises uncritically, as given, because we assume that they were established theoretically and confirmed empirically by legislators and judges long ago. (1)

If awareness of anomaly plays a role in the emergence of new sorts of phenomena, it should surprise no one that a similar but more profound awareness is prerequisite to all acceptable changes of theory. (2)

I. INTRODUCTION

Robert Bork's seminal treatise on antitrust law, The Antitrust Paradox, signaled a dramatic change in how lawyers and courts viewed antitrust law; in most areas that is. Bork articulated a goal for antitrust law, consumer welfare, (3) and then proceeded to demolish many of the basic antitrust legal interpretations of the day. In the terms of Thomas Kuhn, Bork swept up the Inconsistencies of the antitrust law of the day and proposed a significant paradigm shift in how antitrust law should work and what should be considered an anticompetitive practice.

While Bork was very dismissive of the analytical underpinnings for many of the practices considered anticompetitive by the courts, he did consider some types of practices worthy of continuing antitrust concern. He gave chapter 18 of the book the title Predation Through Governmental Processes, and he described these practices as "an increasingly dangerous threat to competition." (4) While he does not specifically single out the grant of intellectual property rights for comment, one of the cases that he discusses, Walker Process Equipment, Inc. v. Food Machinery Corp., (5) is a case of patent fraud and is a core element of what has been described as the antitrust counterattack in patent infringement litigation. (6) Bork closes the chapter by stating that:

 
   Predation through the misuse of governmental processes appears to 
   be a common but little-noticed phenomenon. Some of it is 
   unreachable by law because the attempt would interfere with 
   explicitly political processes that must be left free, but much 
   predation of this type can be halted. In this area, antitrust can 
   not only perform a valuable service to consumers, but as a 
   by-product, can also contribute to the integrity and efficiency of 
   administrative and judicial processes. (7) 

One of the questions that this article will address is whether the courts, as represented by the decision of the U.S. Supreme Court in KSR International Co. v. Teleflex Inc., (8) have begun to perform the valuable service to consumers anticipated by Bork.